The Convergence of National Anti-Dumping Legislation Among ASEAN Countries

THE CONVERGENCE OF NATIONAL ANTI-DUMPING LEGISLATION
AMONG ASEAN COUNTRIES
CHAPTER I
INTRODUCTION
A. Background of the Study
Since the 1990s, the Philippines has been opening up its economy more and more
to international trade, as seen in the joining of various bilateral, regional trade
agreements, not to mention the World Trade Organization (WTO) and in the increase in
the value of imports and exports to and from the Philippines which have increased four-
fold since 1992. However, international trade is not without risks, thus some countries
may choose to set up some non-tariff barriers to remedy unequal trading. Indeed it is
noted that several developing countries recently erected anti-dumping and other
contingent protection regimes, the Philippines and several of its Asian neighbors being
included in a group known as the "new users of anti-dumping" (Nakagawa, 2007; Das,
2005).
Another effect of increased economic integration is the "convergence" of policies

across countries. The theory of policy convergence works on the assumption that policy
regimes are rarely contiguous across countries. Policy convergence can be seen as an end
in itself as it facilitates trade between countries by providing similar rules and standards
across countries which reduce transaction costs and save time. Policy convergence is not
just seen as an end, it can also be seen as a process wherein there is "the tendency of
policies to grow more alike, in the form of increasing similarity in structures, processes,
and performances" (Drezner, 2001). So, policy convergence may be the result of the
conscious policy of governments acting in coordination with other governments to solve
common problems or; it may also occur as a result of an effort to cope with competitive
pressures emerging from international economic integration, in this case convergence
takes the form of a race to the bottom (Holzinger, Knill and Sommerer, 2008).
The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 1

Convergence theory has received its share of criticism. Much of the criticism on
policy convergence studies are that they suffer from a deficit of empirical findings which
is partly a result of a heterogeneous and inconsistent theoretical literature (Knill, 2005).
Furthermore, much of the recent literature uses cross-country regressions in order to test
for the causes of convergence which the present author believes diminishes the usefulness
policy convergence studies since one does not actually see how the convergence
pressures involved are accounted for in the policy processes of countries.
This study seeks to test policy convergence theory by applying it in the anti-
dumping regimes of ASEAN countries. The author is interested in finding out to what
extent convergence has occurred and the mechanisms of such convergence in the area of
anti-dumping policy.
The anti-dumping regimes are normally codified into the anti-dumping laws of a
country and this provides a legal framework for its use by countries. This is in addition
to the anti-dumping and safeguards mechanism framework built into the GATT/WTO
framework, this means that countries still have the freedom to develop laws autonomous
to the WTO which justifies this study (Roque, 2006).
A country's anti-dumping regime is also expected to come under international

pressures that lead to convergence. For example, multinational companies may benefit
from a harmonization of anti-dumping laws and may thus lobby for some procedural
changes in a country's anti-dumping regime. The WTO also benefits from trying to
harmonize the anti-dumping regimes across countries. Yet again the fear of economic
retaliation from a major trading partner may cause a country to modify or develop an
anti-dumping regime that is stricter in its determination of dumping and injury as well as
in the implementation of its anti-dumping duties.
This study looks at the evolution of anti-dumping law in the Philippines and its
major ASEAN trading partners, specifically, Indonesia, Malaysia, Thailand and
Indonesia. The author chose these countries because they have all passed anti-dumping
laws between 1992 and 2000. Because of the short time span the countries had to

develop anti-dumping policies, the author suspects that convergence may have occurred
with regards to these anti-dumping laws. The author would like to find out if
convergence has indeed occurred and to what were the causal mechanisms that led to this
convergence.
B. Statement of the Problem
This study tries to answer the following questions in order to apply policy
convergence theory in the case of anti-dumping.
General Question: What are the causal factors behind the convergence of anti-dumping
law among ASEAN member states?
Specific Questions:
1. What is the current state of convergence in the anti-dumping regimes laws of

ASEAN member states?
2. What are the international pressures that governments and policy-makers faced
that may have led to policy convergence in anti-dumping policy?
C. Definition of Terms
Policy Convergence – development of similar or even identical policies across countries

over time both in terms of the process and substance of the policy (Knill, 2005).
Operationally, policy convergence refers to an increase in similarity in the methods and
strategies employed by governments to promote specific industries.
International Harmonization – this mechanism leads to convergence when the countries

involved comply with legal obligations under binding international agreements. Often
the agreements require their signatories to adopt similar policies as part of their
obligations (Holzinger and Knill, 2005).

Imposition – Conceptually, this is seen when informal pressures are exerted on
organizations by other organizations. Dependent organizations are likely to adopt
patterns of behavior sanctioned by organizations that control critical resources as these
resources can be used as an incentive or a penalty (Holzinger and Knill, 2005).
Operationally, this can involve pressures being exerted upon an organization within a
state by another organization from outside the state which the organization is forced to
submit to by virtue of the resources that the pressuring organization holds (i.e. an
international financial institution pressuring governments into adopting certain
"conditionalities" in exchange for loans).
Regulatory Competition – Regulatory competition causes convergence when countries

facing competitive pressure due to economic integration mutually adjust their policies
(Holzinger and Knill, 2005).
Transnational Communication – Transnational Communication refers to the tendency of

frequently interacting national bureaucracies to develop similar structures and concepts
over time. "Policy convergence results from organizations striving to increase their
social legitimacy by embracing forms and practices that are valued within the broader
institutional environment (Holzinger, Knill and Sommerer, 2008)."
Independent Problem Solving – Convergence may arise from "similar but independent
policy responses of political actors to parallel problem pressures (Holzinger and Knill,
2005)." The convergence that occurs in this case can be seen as merely a coincidence.
Anti-dumping – The 1994 GATT Agreement on Anti-Dumping defines dumping as the

practice whereby the products of one country are introduced into the commerce of
another country at less than the normal value of the product. Anti-dumping is the
instrument that allows an importing country to impose import restrictions when an
exporting country sells products at a lower price than domestic producers (Finger &
Nogues, 2007).
D. Objectives

In connection to the research questions posed in the statement of the problem, the
author specifically is interested in the following objectives.
1. To describe the current state of convergence in the anti-dumping regimes of the

Philippines, Indonesia, Thailand, Malaysia and Vietnam.
2. To determine the international causal mechanisms that led to the convergence in

Anti-dumping law.
E. Significance of the Study
This research is also be helpful in the field of convergence studies as Daniel

Drezner (2001) and Christoph Knill (2005) admitted that policy convergence studies is
hampered by a lack of empirical and descriptive data hence many hypotheses remain
unsolved. This thesis hopes to be a contribution to the theory that increased economic
integration leads to increased similarity in terms of policies.
Specifically in the field of policy convergence, this research attempts explain the
behavior of states in the making of policies which are governed by international rules or
compliance with international agreements. In this case it is national anti-dumping laws
versus the WTO anti-dumping agreement and how states try to formulate their laws
according to international guidelines.
Lastly, this research is also a welcome addition to literature on anti-dumping

especially in the legal analysis of anti-dumping law. Junji Nakagawa (2007) notes that
legal analysis in this area has been limited and most of the literature in this area do not
use a common framework for comparing anti-dumping laws across countries. This lack
of a comparative framework is hopefully adequately addressed in this study.
F. Scope and Limitations
This study is limited to describing the state of convergence in anti-dumping

policies between the Philippines and its neighbors Thailand, Vietnam, Malaysia and

Indonesia. This study will then look at the policy process that led to policy
convergence/divergence in the Philippines without describing the same process in other
countries.
According to Holzinger and Knill (2005), studies on policy convergence normally

distinguish between policy outputs (the policies that governments adopt) and policy result
(implementation and whether the policy has been effective or not). This study will only
look at policy output in terms of the characteristics of anti-dumping laws across
countries. Furthermore, this study will not look into the normative implications of this
convergence, i.e. whether convergence is good or bad for the economy, or whether all
countries benefit from convergence and the like.

CHAPTER II
REVIEW OF RELATED LITERATURE
A. Introduction
This section is divided into two parts; the first discusses literature on policy
convergence. In this part, special attention will be paid to how each study determined
that convergence was taking place and the explanatory factors for such convergence, this
part also features literature that deal with the processes and actors that lead to policy
convergence. The second part looks at comparative studies of anti-dumping and
safeguard in order in order to show how these regimes may be examined in the present
study.
B. Policy Convergence
Empirical Studies on Convergence
Daniel Drezner (2001) attributes policy convergence to economic integration and

free trade. Economic integration and the increase in free trade are attributed to
globalization which he defined as "technological, economic, and political innovation that
have drastically reduced the barriers to economic, political, and cultural exchange."
From this definition, one can see that globalization also strengthens the market forces
borne by international trade, thus increasing pressures on states to adjust their policies or
"converge". Drezner tried to apply his framework in the case of labor standards and
environmental protection.

Using a review of previous studies on labor standards and economic effects, he
found that in OECD countries, there has been convergence towards strict labor standards,
while in developing countries there was only a "slow drift" towards the enforcement of
core labor standards. Core standards being rights against child labor, slavery, non-
discrimination and to unionize, notwithstanding additional rights such as health, safety,
employment benefits, minimum wage, etc. Drezner claims that this is due to an elite
consensus more than anything else.
In environmental protection, Drezner identified that the literature covers a wide

array of policy areas from the protection of endangered species to global warming, most
of them saying that levels of environmental protection have increased over time. Drezner
looked at statistical evidence linking economic performance with environmental
protection. The evidence shows that varying levels of environmental protection do not
deter investment in a statistically significant way. A more compelling reason for the
"explosion" in environmental regulation is supplied by world society theory, in which
Drezner noted that as the number of environmental associations, treaties and
organizations grow and as scientific discourse becomes more rationalized, environmental
regulation becomes stricter. In the end, convergence in environmental regulation mirrors
that of labor standards, with OECD standards becoming stricter and developing countries
progress being erratic.
In the end, Drezner concludes that globalization as a phenomenon is not

deterministic—there is no way to predict the location of policy convergence.
Holzinger, Knill and Sommerer (2008) tried to statistically test three causal
mechanisms of convergence that were outlined in Knill (2005). This article tries to find
the answer to the question of whether one can actually observe convergence of policies at
all and under which conditions domestic policies are expected to converge (or diverge).
The authors specifically examined the convergence of environmental policy in EU from
1970 to 2000.
The authors of this study start with the assumption that diffusion of policies can

be expected to result in an increase of policy homogeneity among states, what is not clear
however, is the extent of convergence. Furthermore, the authors try to determine whether
an increase in economic and political linkages between nation-states lead to increasingly
similar policy measures across countries.
The authors put forth three international factors that may cause cross-national
policy convergence (in addition to domestic factors). These are: (1) International
harmonization; (2) Transnational communication and; (3) Regulatory competition. The
researcher has adopted in the present study to explain convergence in anti-dumping.
Using the adoption rates of environmental policies for countries and using
regression analysis, the authors found out that there has been substantial policy
convergence in the countries observed. In testing for the causes of convergence,
international harmonization and transnational communication seem to affect policy
convergence while regulatory competition does not seem to have an effect.
Nicoletti, Scarpeta and Lane (2003) found evidence against policy convergence
and the race to the bottom hypothesis in the liberalization and privatization in OECD
have caused their regulatory policies in product market regulation. The authors also
found out that the divergence in regulatory policies lines up with the divergent growth
performance of countries that make up the OECD, specifically that European countries
tended to perform poorly relative to the United States. The authors explained this
divergence through the fact that OECD countries all started from different levels of
productivity and the countries were also at different levels of technological progress.
The authors arrived at this conclusion through correlational statistics. The authors
made use of a large data set that included 12 OECD countries and that contains
information on how product market regulations for detailed manufacturing and service
industries have evolved from 1980 to 2000. The authors were concerned as to how
sweeping product market reforms like: (1) privatization; (2) liberalization of potentially
competitive markets; and (3) pro-competitive regulation of natural monopoly markets
affected growth in those sectors. To gauge the extent of these reforms, they used a set of

cross-country quantitative indicators of regulatory reform to reflect regulation in
particular areas that the authors constructed. Growth was measured according to multi-
factor productivity (MFP). As a whole, the indicators that these authors have constructed
have shown that restrictiveness has decreased steadily for the past twenty years. In order
to correlate the MFP growth per sector to the decrease in market regulations, the authors
had to use a series of regressions. Through this, the authors found out that there is a great
variation in the growth rates of the different OECD countries. Nicoletti et al attributed
this to the significant differences in the pace of reform across countries that, in the first
place, already had very different policy approaches at the beginning of the period. At the
same time, market integration, EC competition policies, and the EMU apparently did not
provide sufficient constraints and/or incentives to European governments for
harmonizing the regulations in their domestic markets, which remained largely under the
realm of domestic policies, often unfriendly to competition.
International Harmonization
International harmonization in relation to this thesis is a kind of process leading to

policy convergence which involves the coordination of national policies among states.
The studies discussed so far deal with international harmonization in terms of cross-
country regression analyses. Beth Simmons (2001) on the other hand, tried to examine
the political economy international harmonization in the case of capital market
regulations using a more qualitative methodology.
She started the article by establishing the fact that international capital flows have
increased steadily over the years and that this has caused problems for national financial
regulators and that efforts to enact capital market reforms unilaterally have become
difficult due to the increasingly complex nature of international finance (in the case of the
derivatives market alone, there are so many kinds of instruments that international
finance can get confusing). Simmons mentioned that efforts to coordinate international
capital markets have cropped up starting in the mid 80s and these have varied in their
degree of politicization and institutionalization.

Simmons was interested in determining the causes of this variation focusing on
the mechanisms that encourage policy convergence. To that end, she developed a simple
framework which focuses on the strategic interactions between a dominant "regulatory
innovator" and the rest of the world. (The innovation is considered exogenous to the
framework.) According to her framework, it is then necessary to determine: (1) Whether
other countries have an incentive to emulate the reforms and; (2) whether the negative
externalities experienced by the dominant center are easily targeted or diverted. With
regard to the second condition, the presence of externalities in the dominant country is
essential because it helps determine whether the regulators of the dominant country have
an incentive to pressure other countries to conform, the use of political pressure in this
regard is necessary if harmonization is to occur. Furthermore in the case that
externalities are easily targeted or diverted, Simmons expects the dominant country to
invest heavily on international institutions allowing the institution to wield actual power
when otherwise it would be merely weak or symbolic.
In application, Simmons' framework (through international institutions)

adequately explains why a large number of national banking regulators have been willing
to adopt the capital adequacy standards in the Basel Accord. The framework also
explains why anti-money laundering reporting rules have been slow and highly
politicized. In this case, the United States has had high negative externalities because
money laundering is costly for them, yet smaller countries do not want to emulate the US
because increasing regulations in this area make them less competitive compared to
countries like Switzerland where banking secrecy is held in high regard. In the case of
accounting standards for public offerings, there was high incentive to emulate and low
negative externality for the US (which was the innovator), harmonization occurred
largely fueled by market forces with international institutions providing legitimacy.
In conclusion, the framework used here is attractive because it can be used for
other issue areas as in the present study. It may be interesting to find out if dominant
countries have had a role to play in the development of policy through the innovations
that they have enacted and whether they have actively tried to disseminate these

innovations. In this study, one can already see that developing countries already have an
incentive to emulate other countries in adopting anti-dumping laws thanks to the
economic liberalization brought about by the multilateral trading system of the WTO.
The United States (undoubtedly the most powerful proponent of the WTO but may also
include other traditional users such as the EU and Argentina) finds that it is not easy to
divert negative externalities brought about by anti-dumping investigations (such as
retaliations) which leads them to promote conformance to WTO anti-dumping rules.
Domestic Political Conditions Leading to Policy Convergence
Victoria Murillo (2002) contributed to the empirical body of knowledge in her

study that explored the role of domestic politics in the convergence of privatization
policies in Latin America.
In Latin America, it was the debt crisis that triggered the spread of new
economic ideas, privatization in particular. Traditional policies were seen to have
"failed" and this facilitated the emergence of a new policy consensus. One interesting
observation that Murillo made is that politicians took advantage of the privatization
process to distribute resources in such a way that allowed them to constitute and reinforce
political coalitions. In addition, the politician's prior beliefs influenced how they
processed the information regarding the state of the world and shaped their institutional
preferences. The combined effect of political coalition and beliefs is what Murillo calls
"political bias".
As applied in this study, convergence the similarity in the choice of regulatory

institutions in the period of privatization. This study examined the political/social
environment at the time in which the policies were implemented and used this to try to
explain the outcome. In order to demonstrate how this happened, the author examined
the case of public utility privatization in Argentina, Chile and Mexico.
In Chile, electricity and telecommunications were privatized. The Pinochet

administration was already receptive to neoliberal economic principles and government

had a low preference for state intervention so the government did not create independent
industry-specific regulatory agencies. Under the program of "popular capitalism", the
government created special pricing schemes in the utilities which benefited the
government's core constituencies and helped create a new class of property owners.
In Mexico, the government only privatized telecommunications. The government

placed restrictions to foreign management and put specific investment targets for new
providers. Mexico already had a high level of preference for state intervention which
explains the creation of an independent regulatory agency (the Cofetel). President
Salinas also tried to exploit the situation by building political coalitions. He used
privatization to reward allies and to raise funds for his political party.
In Argentina, there was a moderate level of economic nationalism which explains

why electricity and telecommunications privatization did not include limitations to
foreign capital and management while placing investment targets. The Peronist party
preferred high levels of state intervention and thus created an autonomous regulatory
agency for privatized firms. Menem used the situation to build coalitions by allying with
domestic business groups and labor unions. He even used privatization to reduce
outstanding financial obligations by swapping debt for privatized assets.
To sum up, Murillo's work is useful because it explains that the domestic situation
of a country can be useful in explaining the legal and institutional outcomes of new
policies. For example, the form of regulatory institution and legal framework adopted
can be explained by prevailing ideas at the time. This leads one to the case of
convergence in legal institutions. Furthermore, the domestic situation can explain
conformance or non-conformance of anti-dumping laws to the Anti-Dumping Agreement
since lawmakers within the country were willing to risk the possibility of dispute
settlements in order for them to please their constituencies with anti-dumping laws that
were easier for them to use or had a higher probability of a positive determination. Of
course, it can work the other way, meaning that the domestic environment may be more
indifferent or even supportive of economic liberalization which means that legislators are
more likely to comply with international agreements and even go beyond the minimum

requirements of the agreement.
Pistor and Wellons (1998) wrote a book describing the development of the legal
framework and legal institutions in Asia and their role in economic development. This
study looks at the role of legal framework in the economic development of Asian
countries. The authors of this book wanted to answer the questions: Does law matter for
economic development? Is Asia different? To address these questions, the authors
presented these hypotheses.
1. Convergence hypothesis. Defined as when laws and legal institutions

converge with economic development. This is said to occur across
economies as "domestic economic development interacts with the growing
internationalization of markets to produce law and legal institutions that, if
not identical on paper, perform largely similar functions" (21).
2. Divergence hypothesis. In this case, each economy follows its own

idiosyncratic development of legal institutions which may or may not be
conducive to economic development.
3. Differentiation hypothesis. Different parts of an economy's legal system

behave differently in response to economic development—some parts may
converge, others may diverge.
This study made use of a historical descriptive methodology. The authors

described the development of business governance, financial policies and dispute
settlement in the countries of: China, Taiwan, India, Japan, Korea and Malaysia.
The authors examined the development of these laws according to their allocative
dimension and procedural dimension. In Pistor and Wellons study, the allocative
dimension refers to the degree in which the state controls resources while the procedural
dimension refers to the legal processes by which states exercise control over resources.
The evidence discovered by the authors seemed to support the convergence

hypothesis. They see that economic development (i.e. economic performance) has
converged and with it legal convergence. The authors also found out that convergence is
stronger along the allocative dimension of the law than on the procedural dimension
which indicated that states basically retained the same institutional framework while
changing in policy goals. Trade protection, especially anti-dumping, while not discussed
in Pistor and Wellons, is procedural in nature, i.e. it reduces the determination of the
allocation of protection to firms into a legal process.1
Role of Non-State Actors in Policy Convergence
According to the framework of this present study, one of the important sources of
policy convergence is the academe, i.e. universities, think tanks, international
organizations. Sylvia Ostry's (1991) edited volume deals with precisely that.
Her volume was about the role of research and the academe in the liberalization
efforts of countries in East Asia. The book looks at the experience of Thailand, Malaysia,
Korea, China, Philippines, Indonesia, Australia and New Zealand in economic policy
research. It attempts to connect research with economic liberalization and to determine
the qualities for successful policy research.
Some generalizations can be made from the set of countries examined. One is
Universities are important actors in the research and hence policy process. Universities
are also the source of consultants by other research organizations within a country. The
book also examines the changing role of bureaucracies as a country develops. Basically
as an economy increases in complexity, research agencies increase in number and
complexity. At first, it is enough for a government bureaucracy to act as a "one-stop
shop" for policy research. But as the passing of policies begins to require broad political
cohesion behind them, research efforts are extended to universities and think tanks. The
private sector will also participate at this point by funding think tanks and other research
1
Practice may contradict this since some of the literature say that the state still retains much of the power to
determine whether or not to apply a dumping duty. Having an anti-dumping law only makes a final
determination seem to just be following a procedure when in reality negotiations between the anti-dumping
authority and interested parties are occurring (see Aggarwal, 2007).

facilities in order to protect their own interests. Policy issues also become more complex
(from relatively simple bottleneck debates such as ISI vs export orientation to complex,
sector specific ones).
Basically, what is significant in this study is that it confirms that epistemic

communities (i.e. universities, think tanks etc.) are important sources of policy and that
their contributions to economic policies must be studied.
In another study, Waarden and Drahos (2002) conclude that in their that
convergence has been the result of the gradual and largely implicit pressure and
possibilities for mutual modeling arising from the development of a multi-level split
legal system (what the authors call case law), which, however, has been channeled
between the levels through the lines of communication and exchange created by the
development of a multi-level epistemic community of legally trained officials; i.e. a
combined effect of institutionalism and the epistemic community approach.
Before deciding as to whether lesson drawing was indeed the reason for the
convergence, the authors had to determine whether convergence took place. They
compared the competition policies of Netherlands, Austria and Germany in two
periods, 1950 and 2000. They compared policy across seven dimensions which were:
(1) Goals and basic principles; (2) Application: what organizational arrangements are
in place for the application of the law?; (3) Scope: how broad is the scope of the law?;
(4) The treatment of horizontal restraints of trade, i.e. the classic 'hard' cartels; (5) The
treatment of vertical agreements; (6) The regulation of abuse of a dominant market
position and; (7) Merger control.
The similarities among the countries were assessed using an objective index
created by the authors. The authors used the 2000 EU competition law as the point-
of-reference. They found out that Netherlands differed the least from the EU law,
followed by Germany. Austria was the most divergent from the EU law of the three.
All-in-all, the countries have converged to EU significantly compared to their
measurement in 1950.

Given these differences, the authors then tried to explain the causes of this
convergence. They explored three causes: Institutionalism, or pressure from EU;
Neo-functionalism, or pressure from international business (analogous to this study's
regulatory competition) and; Epistemic communities. Of these three, only in the
epistemic community approach did van Waarden and Drahos find a convincing
explanation. They explained that there was an internationalization of the practice of
competition law which lawyers all over Europe somehow became familiar with the
"European model". Given this epistemic community (the lawyers) that are in the
forefront of law-making, it comes to no surprise that competition policies converged
through them.
This study is striking in that multi-level split legal system and the multi-level
epistemic community seems to describe the WTO Committee on Anti-Dumping
Practices. This angle is further explored in Chapter VI of this study.
Maher Dabbah's article (2003) looked at the internationalization of competition

law with specific reference to the role of multinational enterprises (MNEs) as non-
state actors in the process. By internationalization, Dabbah is referring to the
increasing acceptance of competition law in many countries whether free market or
not. Dabbah also uses it to refer to harmonizing the competition law all over the
world and that governments should essentially adopt the same laws in order to
facilitate trade and law enforcement.
Dabbah cites the following examples of how one can bring about the
internationalization of competition law:
1. Bilateral cooperation – this takes the form of formal agreements between

the domestic competition authorities to allow for the sharing of
information and comity.
2. Harmonization and convergence – The idea that domestic competition

laws can converge towards sine common points and standards.

3. International competition code – This involves creating a detailed
international competition law which can be adopted by countries.
4. International system of competition law – This involves establishing an

international system of competition law within a framework of
autonomous international institutions.
Of course, in the internationalization of competition policy, one could not neglect

the role of multinational enterprises. For one, MNEs have been crucial in the
development of competition laws in developing countries. MNEs have lobbying capacity
and economic power. MNEs also have interests in the internationalization of competition
policy. For one, MNEs want uniformity in the way that competition cases are decided in
different countries. They are also concerned with the length of time it takes to
accomplish a bureaucratic procedure in a country, they want competition authorities in
different countries to reach decision in more or less the same amount of time.
MNEs as actors in the policy process, is also important in the study of policy
convergence. This study explains and applies it in the case of competition policy. It is
not hard to imagine MNEs and MNCs as actors in the development of anti-dumping and
safeguards regimes.
C. Anti-Dumping Laws
Comparative Studies of Anti-Dumping Law and Use
It was only recently that legal analysis of anti-dumping regimes became popular
(Nakayama, 2007). For this reason, there are only a few serious books and studies that the
author is able to review compared with studies on policy convergence. Most of them deal
with the legal systems of the "traditional" anti-dumping users, the US and EU. These do
not necessarily deal specifically with convergence; rather they go into the policy
experiences and policy developments in this policy area. The two studies surveyed in
this section is important in understanding the dynamics in anti-dumping and safeguards

as well as differences in the implementation of these per country which can go far in
helping the author compare anti-dumping and safeguards regimes.
The most notable study that the author reviewed is that of Messerlin and Reed
(1995). This study deals with the increasing similarity (convergence) of the anti-
dumping regimes of the US and the European Community since the 1980s. The authors
noted that the anti-dumping regimes became more similar in 3 crucial areas: their
relationship with competition policy; their role in trade policy and; in their political
economy dimension. In terms of the anti-dumping – competition policy relationship, the
authors noted that since the 1920s, the US has been treating anti-dumping as the
"international form" of anti-trust. They were once even procedures that used an
economic approach to anti-dumping which looked at the costs and benefits of dumping (a
feature that was shared with US anti-trust policy which determines the legality of a
monopoly based on economic benefit). Eventually, the US began using the GATT
framework for anti-dumping which had a much less profound connection with
competition policy, thus making American anti-dumping policy more similar with EC
anti-dumping policy which also lacked a profound connection with competition policy.
The second area—that anti-dumping increasingly became a part of trade policy—

resulted from changes in the international trading system. As non-tariff barriers (NTBs)
were reduced in both the US and EC, as a result of multilateral negotiations (namely
GATT and, in the case of EC, the common market), anti-dumping was turned to more
and more frequently for the protection of domestic industries.
Finally, in the political economic dimension, the justification for the use of anti-
dumping policy became largely political, i.e. before the 1980s, EC rhetoric on anti-
dumping has rarely invoked notions of "fairness" or "restoring a level playing field". The
US however has been making use of these justifications, thus making the use of anti-
dumping favorable on their part. Since then, the EC has emulated US rhetoric thus
making anti-dumping increasingly the instrument of choice.
Aside from these three crucial areas, convergence has also occurred in terms of

anti-dumping use. Messerlin and Reed examined anti-dumping cases lodged in between
1979 to 1989 for their study. They found that in terms of the number of cases lodged and
the rate of success of anti-dumping investigations, the US and EC have had very similar
outcomes (US has a success rate of 61% and the EC has 75% for the given period).
Outcomes between these two have also been very similar in terms of which industries
have lodged the most number of cases (four industries in particular: chemicals; primary
and fabricated metals; non-electrical machinery and; electric and electronic equipment,
represent 76% and 72% of total anti-dumping cases filed in the US and EC respectively
for the said period).
Messerlin and Reed conclude that the convergence between the US and EC is a
result of a "protection engineering process". This is because the tariff reduction process
within the GATT is a lengthy, complex and expensive process which is rarely resorted to.
Anti-dumping is a much more convenient way to protect domestic industries from foreign
competition.
Jean-Christophe Maur (1998) wrote an article that deals with the echoing of anti-
dumping cases. Echoing is similar to policy convergence, however the similarity does
not lie with the structures in policy. It refers to the increase in similarity of the use of a
particular policy. In this study, echoing refers to when a state initiates anti-dumping
procedures for a certain good and for a certain producing state and within a very short
time span a similar action was undertaken in another state for the same good and
producer. Maur investigated the role played by multinational enterprises (MNEs) in
initiating these anti-dumping filings and he found that these companies are in the best
position to imitate anti-dumping filings and to benefit from this echoing. Maur calls this
regulatory competition among MNEs. What this study reveals is that the implementation
of anti-dumping policies may converge across countries and may be brought about by
MNEs. This is interesting because MNEs by definition are not loyal to one state. MNEs
may facilitate communication among states and thus facilitate policy convergence much
like what happened in the case of competition policy as seen in the study of Dabbah
(2003).

Finger and Nogues (2006) in an edited volume, go into the development and
history of anti-dumping and safeguards in Latin America. The book is composed of case
studies of the history, politics and evolution of policies. Since each of the chapters are
written by a different author, there is hardly any unity in the book aside from the common
topic. Some generalizations can be gleaned from the book however. One is that the
application of anti-dumping and safeguards mechanisms goes hand-in-hand with trade
liberalization. These measures can be used as tools for long-term policy management by
government and thus the instruments can be manipulated in order to further long-term
policy goals. Institutional mechanisms for administering the trade defense regime are
idiosyncratic to each country depending on the "selling conditions" of that country (from
Murillo, 2002). Discipline may also vary across countries, given that WTO rules are
already generous in the area of trade defense, some countries chose to make their own
safeguards and anti-dumping regime stricter than the minimum provided in WTO.
Susanta Das (2005) examined the evolution of anti-dumping and safeguards

measures in the United States, European Union and Japan. Specifically he focused on the
politics that led to their adoption. In the case of the United States, the author noted that
its development was characterized by an "executive-legislative tug-of-war". Learning
from US experience prior to World War II (when US congress passed the Smoot-Hawley
Act), the executive branch learned to treat trade protectionism as an instrument of foreign
policy, thus trade policy came under executive control. The EU case was similar to the
United States as it also encountered the same set of economic problems and political
forces and thus their pattern of their protectionist programs were similar. One important
difference however is the institutional set-up. The EU is only "trying to be a state" unlike
the US, which made political unity higher on EU's agenda than the US. Among the
major concerns the EU had at the outset was producing sustainable growth, employment,
promoting social cohesion, the common agricultural policies (CAP) and the environment
among others. This resulted in EU liberalizing under a most favored nation (MFN) basis
while opposing liberalization in traditional sectors such as textiles and agriculture and
anti-dumping became the preferred method of dealing with cheap imports Under the
Treaty of Rome. In the case of Japan an anti-dumping law has been in place since the

1920s, but the Japanese were never a people that relied on judicial procedures and so
anti-dumping was never really used as a policy in Japan. Das concluded that domestic
political economy is a significant influence on the protectionist policies a country
undertakes, in the case of anti-dumping and safeguards, a seemingly innocent 'safety
valve' mechanism becomes a major trade protection mechanism.
From these studies, one can see that anti-dumping and safeguards can take
different forms and be used for purposes other than what they were originally planned for
in the GATT/WTO conventions. One can say that these policies may converge or
diverge in a group of countries and that it would be interesting to discover the reasons for
such an outcome.
Anti-Dumping Laws in Southeast Asia
There are only a few studies dealing with the anti-dumping laws and practices of
Southeast Asian countries and the researcher has yet to encounter any that deals with
anti-dumping laws from a comparative perspective. However, two studies are
noteworthy: Yoshida and Ito's case study of Thailand included in the volume of Junji
Nakagawa (2007) and Thi Thuy Van Le and Sarah Tong's (2009) case study of Vietnam.
These two case studies both used a historical descriptive methodology for describing the
history and evolution of the anti-dumping laws of Thailand and Vietnam. In these two
studies, their authors discussed the legal bases for anti-dumping and the changes of these
laws, whether it is by amendment or by being replaced with another law. Another
common theme in these studies is the international background behind the changes in the
laws which are commonly attributed in these cases are to conformance with the WTO or
to address inefficiencies in the laws. The key features and improvements of each
succeeding law or amendment are also discussed as well as the institutions that govern
anti-dumping.
Yoshida and Ito's case study on Thailand makes use of communication between
Thailand and other countries through the WTO in order to show which directions the
international community was trying to push Thai anti-dumping laws in terms of

procedures. The researcher believes that it is also beneficial to use the same technique as
this communication itself can be seen as a mechanism of convergence either as
transnational communication or as international harmonization.
This same technique was not possible for Le and Tong's case study of Vietnam
since as of now, there are hardly any communications between WTO members and
Vietnam regarding its anti-dumping law as of now. What the Vietnam study does use
however are anti-dumping cases that it initiated and were initiated against it. It highlights
Vietnam's increasing awareness and proficiency in the application of anti-dumping laws
on both the part of the government and of the domestic industries themselves. Seeing as
experience in handling anti-dumping cases may influence the anti-dumping laws, the
researcher believes that looking at some cases and dispute settlements may be beneficial
in understanding policy convergence.
Harry Roque (2006) presented a paper on Philippine anti-dumping and other

contingent protection measures in the context of the WTO agreement. This is basically a
descriptive paper which describes Philippine anti-dumping laws as being largely GATT
consistent although some compromises had to be made with certain provisions (for
example, on the giving of dumping duties to the dumping party, which exceeds what was
prescribed in the GATT ). This is very different from the first two studies dealing with
Southeast Asia as the focus was not so much on the anti-dumping laws themselves but on
WTO conformance. What is interesting in the paper was the methodology which used
lobbying by domestic groups and writings of advocates of both trade and protectionism
as the explanation for the inconsistencies of Philippine anti-dumping law vis-à-vis the
GATT agreement. This study also hopes to do the same using the causal mechanisms in
policy convergence.
D. Summary of the Review
The first part of part B of this review focused on empirical studies on policy
convergence. The value of this section is that it shows how other authors operationalize
concepts such as regulatory competition, international harmonization and transnational

communication. The studies examined in this part make up the basis of this study's
theoretical framework. The succeeding parts look at the specific mechanisms from a
more qualitative basis. Part C looks into literature on anti-dumping, the first section of
this part looks at comparative studies of anti-dumping laws and the history of these laws.
The main purpose of this section was to show that anti-dumping laws undergo changes
over the course of history and the reasons that bring this about. The next section
examines some of the history of anti-dumping laws in Southeast Asia, the focus of this
study. This section helps the author determine appropriate methods for examining the
history of these laws.
Looking at the works presented in this literature review, one can find plenty of
justification for the conducting of this present study. One can see that the theory of
policy convergence and related concepts has very good explanatory power and that there
are a myriad of ways in which one can study this phenomenon. This study would like to
approach the case at hand from a qualitative perspective from which there is no shortage
of explanations the mechanism of convergence. A very convincing mechanism is the one
presented by Waarden and Drahos which explained convergence as occurring within a
multi-level epistemic community which in turn exists within an institution such as the
EU. Another mechanism of convergence is domestic conditions as expounded by
Murillo as this can help explain some of the amendments that anti-dumping laws faced
over the years. Noticeably lacking are literature on anti-dumping laws from a
comparative perspective. Most of the studies of anti-dumping laws are country-specific
case studies which by their nature stand alone. The volume of Finger and Nogues (2006)
and Nakayama (2007) are collections of these case studies and no attempt at a conclusion
or integration is made at the end of each volume. The researcher needs to correct the lack
of such literature.

CHAPTER III
THEORETICAL FRAMEWORK
A. Introduction
The umbrella thesis for this study is the "policy convergence thesis" which states
that given participation in international organizations, economic integration and
transnational communication of epistemic communities policies tend to become more
similar across states (Holzinger, Knill & Sommerer, 2008). This study will employ a
convergence framework that was articulated in Knill (2005) and Holzinger & Knill
(2005), in order to show that policies have converged in the countries selected and the
reasons for this. This same framework will be used to explain how international
pressures figured in the development of Philippine anti-dumping policy and how it
converged with the anti-dumping regimes of other countries.
B. Policy Convergence
According to the theory, policy convergence is defined as the increase in the

similarity of policy characteristics across countries over a span of time. Policy
characteristics can refer to policy settings, policy instruments, policy objectives. With
respect to the degree of convergence, Holzinger and Knill (2005) do not provide any
objective criteria. Instead he says "we first of all have to clarify the criteria on the basis
of which we judge whether policies across countries are similar or not." This means that

one must provide his own criteria to say whether policies have converged or not (usually
comparative literature on the specific policy should give sufficient points of comparison).
For example, looking at the case of competition policy: convergence in policy

setting is said to occur when laws begin to cover similar elements of intra-firm
competition such as mergers, abuses of market power, horizontal agreements, horizontal
agreements, vertical agreements and unfair trading provisions; Policy instruments can
refer to the tests and thresholds employed when government authorities study
competition cases and also whether they use judiciary or administrative based
enforcement systems and; policy objectives which in competition policy would be either
to ban monopolies altogether or to ban them only when they case harm to the public
(Bollard and Vautier, 1998).
Christoph Knill's theory on policy convergence is not just concerned with policy
similarity, it is also concerned with the following questions: What explains the adoption
of similar policies across countries over time?; Under which conditions can we expect
that domestic policies converge or rather develop further apart?; Why do countries
converge on some policies, but not on others? and; What is the direction of policy
convergence?; Do national policies converge at the regulatory top or bottom, and why?
Direction of Convergence
One important element of Knill's framework is how one looks at convergence.

He lists four kinds of convergence according to the direction of the convergence of policy
characteristics:
1. Sigma (σ) Convergence – If there is a decrease in the variation of policies among

the countries under consideration within a span of time.
2. Beta (β) Convergence – When laggard countries (in terms of policy

characteristics) catch up with the leaders over time.
3. Gamma (γ) Convergence – Refers to changes in country ranking with respect to a

certain policy area.
4. Delta (δ) Convergence – Refers to "distance changes" (increase/decrease in

similarity) of a country's policies with respect to an exemplary model.
Given these different kinds of convergence, convergence can either be seen as a

gradual process that involve a gradual change towards policy similarity where all
countries unilaterally change their policies without any clearly defined plan within a
specific time span (sigma convergence). It can also mean developing countries make
their policies more similar with more developed nations by imitating their policies (delta
convergence). For beta and gamma convergence, one can imagine indices of economic
openness wherein it is possible to rank countries according to what they have achieved in
terms of economic openness. For this reason, beta and gamma convergence do not seem
applicable in the case of anti-dumping policy as ranking of policies is not possible.
Holzinger and Knill (2005) relies on the concept of Sigma Convergence to

measure similarity change aside from using it to indicate the direction of convergence.
These kinds of convergence may be difficult to use in this study because the authors use
changes in standard deviation (i.e. it is used in quantitative assessments of policy
convergence).
The direction of convergence is usually related to the extent of state intervention

or to the strictness of a regulation. Lax standards or laissez-faire policies are identified
with the 'bottom', strict standards or interventionist policies with the 'top' (Drezner, 2001).
And the direction, to quote Holzinger and Knill (2005):
[C]an only be measured whenever the policies under consideration come

in degrees, which can be associated with a normative judgment on the
quality of an intervention. Typical examples are the levels of
environmental and consumer protection or labor standards. However, it is
not always easy to identify what the top and the bottom are in a policy,
because there may be different value judgments…Moreover, when policy

instruments are compared it does not make much sense to speak of
directions of convergence. Only in rare cases can a certain instrument be
assumed to provide stricter (or less strict) regulation than another one. In
many cases, it is therefore impossible to formulate hypotheses on the
direction of convergence.
This study has experienced this same sort of difficulty described in the above
passage since it does not make sense to speak of anti-dumping in terms of "strictness".
The author instead analyzes the direction of convergence in terms of whether the law
intends to make anti-dumping easier (in initiation for the domestic industry and in
application by the government) or to discourage it (by making initiation and investigation
costly for those seeking to use it or by making the laws so technical and sophisticated that
an anti-dumping measure becomes easily justified in the international community). This
is in keeping with Vermulst's (1997) framework of comparing anti-dumping laws.
Mechanisms of Convergence
Another important element of Knill's framework, and a concern of this study, is

determining the causes of convergence. Table 1 lists down those causal mechanisms and
looks at the stimuli and the corresponding responses. One can see that the mechanisms
for convergence can range from coercion to independent problem solving with varying
degrees of coercion and independence in between.
Table 1. Causal Mechanisms of Policy Convergence
Mechanism Stimulus Response
Imposition Political Demand or Pressure Submission
International Legal obligation through Compliance

Harmonization international law
Regulatory Competition Competitive pressure Mutual Adjustment

Transnational
Communication
Lesson Drawing Problem pressure Transfer of model found

elsewhere
Transnational Problem- parallel problem pressure Adoption of commonly

Solving developed model
Emulation Desire for conformity Copying of widely used

model
International Policy Legitimacy pressure Adoption of recommended

Promotion model
Independent Problem parallel problem pressure Independent similar response

Solving
Source: Holzinger & Knill (2005)
This study is interested in finding out how anti-dumping policies converged in the
said countries given these causal mechanisms. Were anti-dumping policies the result of
an imposition by another country? Did countries simply discover the usefulness of anti-
dumping on their own? Or did they learn from each other? This can be understood more
clearly by examining the policy-making process for evidence of these causal mechanisms
at work.
C. Operational Framework
The policy convergence framework believes that as time passes and as the
international and domestic situation changes, the anti-dumping laws become more
similar. We see the increase in similarity by looking at past legislation and subsequent
amendments where each amendment is seen as an incremental change to be examined in
light of other countries' legislation and from these changes, one can get an idea as to the
direction of convergence.
These probable causal mechanisms can be determined by examining the history of

the political and economic environment. Certainly, one mechanism may seem to provide
greater motivation to a country to amend its laws to a certain direction more than another.
Thus, the mechanism of convergence will have to be examined in light of the direction of
convergence and as to what procedures became more similar. For example, if the number
of steps needed to initiate an anti-dumping investigation decreased among several
countries, one would tend believe that it is more possible that the pressure that resulted to
this change is largely from regulatory competition (brought about by competitive
pressure) as this decrease is an indicator of a move towards a regulatory bottom. Thus,
by examining the points in which anti-dumping laws converge, the researcher may be
able to more accurately pin-point the mechanism of convergence.
Earlier, the researcher mentioned that the direction of convergence will be

analyzed in terms of whether the law makes anti-dumping easier in use (by governments
and by interested parties) or by discouraging it by including many technical procedures.
Also useful is convergence toward the direction of similarity with the ADA.
Ease of Use – When procedures converge toward the direction of ease of

use/application, the researcher would place more weight on the "more voluntary"
mechanisms of regulatory competition and independent problems solving than the "more
coercive" mechanisms such as international harmonization and imposition.
Harmonization with ADA – If laws seem to converge towards provisions in the

GATT Anti-Dumping Agreement in terms of wording, policy instruments, thresholds,
methodologies and tests, the researcher will automatically ascribe international
harmonization as the mechanism unless there is good reason or evidence to believe
otherwise.
For this study, the researcher examined the relevant laws and procedures of the
countries and tried to look for areas in which they converge. This also involves looking
at past legislation on anti-dumping in order to see what kinds of changes took place in the
countries' anti-dumping regime. The purpose of this exercise is to roughly determine the
mechanism of convergence that may have caused that aspect to become similar (Chapter

V of this study).
In order to be informed more clearly of the causes of convergence, the author also
looked closely at the case of the Philippines especially the policy process that led to the
adoption of an anti-dumping framework and its specific elements. The author looked for
evidence of the causal mechanisms of policy convergence at work (for example, visits or
complaints from powerful countries regarding the anti-dumping situation in the
Philippines and a resulting change in policy may suggest convergence through
imposition) and which aspects of the law contain converged with other countries' anti-
dumping systems. Therefore, if laws converged with one another, it is within this law-
making process wherein one will find the causes of this convergence.
The mechanisms of convergence may already be evident in the international

environment and history. The author will use the following criteria in order to identify
the mechanism of convergence:
Political Demand or Pressure – Is the mechanism that leads to the convergence of

policy through the imposition of laws from another power. The evidence that the author
will keep an eye out for is whether representatives from another state have approached
the leaders and legislators of the state in question to in order to persuade them to enact
anti-dumping laws or to make changes to existing legislation. Political pressure can also
exist when other countries try to bring a country into compliance with international
agreements (in this case, WTO-ADA) with threats to use force.
International Legal Obligation – This is the stimulus that leads to policy convergence
through compliance with international law and other agreements. Holzinger, Knill and
Sommerer (2008) in their empirical study use the ordinal metric of ascension to an
international organization. In this study, the main international agreement that the
countries being studied are members of is the WTO. Therefore, the extent to which
international obligation is a factor in this study depends on how much WTO agreements
are followed.

Competitive Pressure – is the stimulus that leads countries to adopt similar policies
because the country wants to be more competitive relative to other countries. What the
author is looking for is evidence that a country adopted a law or a provision based on the
intention of economic benefit, to simplify application of the instrument or as a retaliatory
measure. Competitive pressure may have taken place if the change in its law is meant to
increase efficiency of the investigation or the effectiveness of a duty. Another change
that may have resulted from competitive pressure are the presence of provisions that by
their nature indicate that government wishes to lessen the negative impact of anti-
dumping on its producers or to discourage nuisance initiations. Competitive pressure is
closely linked with domestic pressures since the lobbying of domestic groups may be
triggered by poor trade outcomes but may be distinguished from domestic pressure by the
fact that reform was initiated by government itself.
Transnational Communication – Under policy convergence theory this may come in

the form of lesson drawing, through transnational problem solving, emulation and
international policy promotion. The author believes that all of these occur in one form or
another. For example, the author believes that the WTO Trade Review Mechanism and
the Committee on Anti-Dumping Practices are examples of lesson drawing. 2 Under the
Committee on Anti-Dumping Practices, countries may send questions and clarifications
to that body with regard to anti-dumping practices and procedures who would then try to
reply as soon as possible with a solution that is consistent with the WTO.
2
Using state – international organization correspondence as a gauge of transnational communication is
consistent with the methodology of Holzinger, Knill and Sommerer (2008) who used the metric of
"communicative potential" or the frequency with which an international organization communicates to its
member states in the form of meetings, forums and correspondence. This study is expounded on in Chapter
VII of this study.

CHAPTER IV
RESEARCH METHODS
The general strategy for this study is that of a case study of policy convergence.
Specifically, the author will examine the convergence of anti-dumping regimes and
related policies in the Philippines, Vietnam, Indonesia, Thailand and Malaysia.
This is a descriptive study that uses document analysis as its main method in order
to show the points of convergence in anti-dumping policy among the said countries. This
study is historical in examining the policy process that went on in the Philippines that
resulted in convergence.
The countries were selected on their basis of geographical proximity, similarity in

economy and trade relations. Furthermore, the majority of these countries have enacted
some sort of anti-dumping law in the early 1990s which indicates that they have all come
under similar problem pressures for this to happen which also increases the chances that
convergence can be observed.
The data needed for this study will be qualitative and they will come in the form
of laws and policies that were put in place between 1992 and those in place in 2008
translated into English if not already in English. The following is a list of anti-dumping
laws that the author examined for the procedures and institutions that they created and the
background in which they were created:
Indonesia:
 The Customs Law of the Republic of Indonesia of 1995
 No. 34 - "Anti-dumping and Countervailing Duty Act of 1996"

 Decree No. 136/MPP/KEP/6/1996 of the Ministry of Trade and
Industry Regarding the Anti-Dumping Committee
 Decree No. 172/MPP/KEP/7/1996 of the Ministry of Trade and

Industry Regarding the Organization and the Working
Procedure of the Anti-Dumping Taskforce
Malaysia:
 Act 504 – "Countervailing and Anti-dumping duties act"
 Countervailing and Anti-Dumping Duties Regulations 1994
 Act A 1046 – "Countervailing and Anti-Dumping Duties

(Amendment) Act 1998"
 Countervailing and Anti-Dumping Duties (Amendment)

Regulations 1999
Philippines:
 Republic Act 7843 – "Anti-dumping act of 1994"
 Republic Act 8752 – "Anti-dumping act of 1999"
Thailand:
 Ministry of Commerce Notification on Principal and Procedure to
Collect Surcharge on Unfairly Priced Imports and Subsidized Imports,
B.E. 2534 (1991 MOC Notification)
 B.E. 2542 – "Anti-dumping and Subsidized Import Act, B.E. 2542

(1999)"
Vietnam:
 Ordinance No. 20/2004/PL-UBTVQH11 - "Ordinance Against
Dumping of Imported Goods into Vietnam (2004)"
 Decree No. 90-2005-ND-CP - "Decree making detailed provisions for

implementation of Ordinance Against Dumping of Imported Goods
into Vietnam (2005)"

The specific sections of these laws were coded according to whether they
contained provisions relating to: General Applications; Dumping Margins; Domestic
Industries; Product (and related concepts such as volume of introduction, de minimis
prices and volumes); injury (definition and determination); Price (normal values, exports
prices and how these are constructed) Price Undertakings; Institutions and Agencies
Involved in Investigation and Determination; Filing and Initiation of an Investigation;
Treatment of Evidence and Confidential Information; Dumping Duties and Margins and;
Reviews. These codes were then compared among countries and described in tabular
form. The author also took into account past legislation and the changes that took place.
Comparison of the laws (past and present and across countries) will constitute the
description of the state of convergence in anti-dumping laws for ASEAN.
For information regarding the possible mechanisms of convergence, the author

relied largely on secondary sources that described the pressures that may influence policy
making. Secondary sources were also relied upon by the author that described the
evolution of a country's anti-dumping regime and some problems and procedures that are
present in its current and past regimes.
The chapter detailing the policy process that went into Philippine anti-dumping
law was written primarily to corroborate the discussion on the direction and mechanisms
of convergence and to inform the thesis of the process of convergence as it may actually
occur in policy making. For this section, transcripts of deliberations in the Philippine
Senate and the Lower House of the bills that would become anti-dumping laws were
studied.

CHAPTER V
POLICY CONVERGENCE IN ANTI-DUMPING
One of the objectives of this thesis is to describe the state of convergence in the
anti-dumping regimes in the selected countries and the points in which their anti-dumping
policies diverge from each other. The policy convergence framework that the researcher
adopted from Christoph Knill (2005) states that policy can become similar in their policy
settings, policy instruments and policy objectives. This section presents the convergence
of anti-dumping policy by first, going over the changes in the anti-dumping policy for
each specific country and saying in general terms the changes that took place with each
change in anti-dumping legislation and some general characteristics and innovations they
contained as well as their role in the larger context of economic policy and then to discuss
specific procedures and aspects of anti-dumping laws. Next, the researcher will examine
the institutional structures of the countries and then show that convergence takes place at
this level. Lastly, the researcher will examine convergence at the procedural level.
A. Legal Bases of Anti-Dumping
This section will discuss the history of laws in anti-dumping in Indonesia,

Malaysia, the Philippines, Thailand and Vietnam. Convergence is seen in the patterns of
adoption between 1990 and 2000—i.e. the story behind how a country comes up with its
current anti-dumping regime is usually the following:
A country would start with a trade and customs code within which contains some
provision that bans the practice of dumping. This code would hardly be invoked and
almost never resulted in a definitive duty on dumped products and the effectiveness and

utility of the provision would thus be dubious as it may lack implementing regulations or
provisions. This was not important since trade policy in the 1980s would still make use
of traditional protectionist measures such as tariffs. In the early 1990s, towards the end of
the Uruguay round which formally established the WTO, countries began amending their
anti-dumping legislation ostensibly to prepare their economies and industries for the
lowering of trade barriers and removal of traditional protectionist measures. In the late
1990s, an amendment or a new anti-dumping law would be enacted as a response to
perceived inefficiencies inherent in the law as well as to keep the laws GATT consistent.
The process is summarized in the timeline in figure 1.
Figure 1. Evolution of Anti-Dumping Laws
Given this story, the author will present the evolution of anti-dumping laws for
each of the countries' anti-dumping regime.
Indonesia
Until late 1995, Indonesia had no anti-dumping legislation. The Customs Law of
the Republic of Indonesia of 1995 was the first law to provide such a basis. In fact, the
English translation of this law contains preliminary statements which state that the law
was reformed from the old customs law in the interest of national development, and that
it state policy to establish legal certainty concerning the customs aspects of international
trade "that have been continuously developing and also to anticipate economic
globalization". The 1995 customs law includes provisions that allowed anti-dumping
duties to be applied, specifically in chapter IV of said law in which both anti-dumping
and countervailing measures were discussed together. The customs law however, only

defines dumping and does not provide any concrete procedures and institutional
arrangements; the Anti-dumping and Countervailing Duty Act of 1996 eliminates this
deficiency and forms the basis of the current Indonesian anti-dumping regime. The
following laws further clarified procedures to be followed as well as serving to create the
Indonesian anti-dumping committee or KADI:
– Decree No. 136/MPP/KEP/6/1996 of the Ministry of Trade and

Industry Regarding the Anti-Dumping Committee
– Decree No. 172/MPP/KEP/7/1996 of the Ministry of Trade and

Industry Regarding the Organization and the Working Procedure of
the Anti-Dumping Taskforce
From what one can see here, Indonesia's policy history actually differs somewhat
from the story presented earlier. While it did start out with a customs law that provided a
basis for anti-dumping, the main piece of legislation never underwent any significant
amendments. The Indonesian legislators must have made the law deliberately vague and
instead gave substantial discretionary powers to the KADI (see the section on
institutional arrangement in this chapter). Indeed KADI was given the responsibility to
formulate appropriate policies to cope with dumped imports and subsidized goods as well
as to formulate policies if Indonesian producers are alleged to be dumping. Therefore, it
seems that Indonesia's strategy in anti-dumping was simply to come up with basic
legislation and supplemented that with more empowered institutions, thus eliminating the
need to amend existing laws as procedures and methodologies can be decided by KADI,
thus explaining why Indonesia does not follow the usual pattern of legislation in the
region. Table 2 summarizes Indonesian anti-dumping legislation.
Table 2. Indonesian Legislation
Yea Legislation Implementing Regulations Remarks

r
1995 No. 10 Customs None Establishes need for legal
Law certainty and recognizes
"globalization". The law
contains no concrete
procedures or institutional

arrangements to handle
dumping
1996 No. 34 Anti- Decree No. The 1996 law is lacking in
Dumping and 136/MPP/KEP/6/1996 of the detail in its procedures.
Countervailing Ministry of Trade and Industry Decree 136 corrects this by
Law Regarding the Anti-Dumping giving KADI the
Committee and responsibility of formulating
policies to deal with dumped
Decree No. goods into Indonesia and
172/MPP/KEP/7/1996 of the even to formulate policies on
Ministry of Trade and Industry how to cope with allegations
Regarding the Organization and that a domestic producer is
the Working Procedure of the dumping.
Anti-Dumping Taskforce
Malaysia
The Malaysians had a Customs act in place in 1967. The legacy of this act in the
1993 law and 1998 amendment is that the phrase "officer of customs" retains the same
definition in the present as it had in 1967.
The Malaysian anti-dumping regime is embodied under the Act 504 –

Countervailing and Anti-Dumping Duties Act 1993 and under the Countervailing and
Anti-Dumping Duties Regulations 1994. These laws are unique in that they do not refer
to an older export or trade code.3 These laws were amended by Act A 1046 –
Countervailing and Anti-Dumping Duties (Amendment) Act 1998 and Countervailing
and Anti-Dumping Duties (Amendment) Regulations 1999 respectively. Among the
reasons stated for the amendment of the law is primarily for increased consistency with
the ADA.
The primary changes that were made to the anti-dumping regime in 1998 and
1999 were clarifications in procedures and methodologies to establish the normal value of
a product and how to make comparisons with the export price. Further standards for the
filing of a dumping petition were established in the amendment, specifically saying that
petitioners must already submit evidence that dumping is happening. Table 3
3
However in a communication with the WTO (G/ADP/Q1/MYS/2 - G/SCM/Q1/MYS/2), Malaysia made
reference to Countervailing and Anti-Dumping Duties Regulation 1984. It is not clear from the text of Act
504 what its relationship to this or any other law is, however since the 1984 regulation is just a
"regulation", it could not have had the same force as the current act.

summarizes the relevant legislation of Malaysia.
Table 3. Malaysian Legislation
Year Legislation Implementing Remarks

Regulations
1993 Act 504 – Countervailing and Countervailing and Anti- None
Anti-Dumping Duties Act 1993 Dumping Duties Regulations
1994
1998 Act A 1046 – Countervailing Countervailing and Anti- None
and Anti-Dumping Duties Dumping Duties (Amendment)
(Amendment) Act 1998 (Act 504 Regulations 1999
remains in force)
Philippines
The Philippines typifies the pattern that was described. The original anti-dumping
law was section 301 of the Tariff and Customs code. Subsequent laws, namely R.A.
7843 (Anti-dumping act of 1994) and R.A. 8752 (Anti-dumping act of 1999) are applied
as amendments to section 301 of the Tariff and Customs code and thus retained the code's
original organization, numbering style and language in order to be consistent with it.
Section 301 was written in the 1970s long before anti-dumping became a common
practice, thus the case, this original law was rather rudimentary and its procedures were
cumbersome and it was not widely used. In 1994, Congress passed R.A. 7843 with the
short title Anti-dumping act of 1994. This law amended the said section 301 of the tariff
and customs code. This in turn was amended by R.A. 8752 or Anti-dumping act of 1999.
This latest act provides the current framework in which anti-dumping is conducted in the
Philippines.
The main changes that took place when the 1994 law was replaced by the 1999
law were: that the laws were made more GATT consistent, established common legal
provisions with other safety nets such as countervailing and safeguards; centralization of
anti-dumping filing; simplified process from initiation to final determination; provision of
discretionary power to the government to terminate the investigation when the dumping
margin is found to be de minimis (less than 2% of export price or when volume is
negligible) among other innovations. These kinds of changes indicate that government

was aiming for a more efficient anti-dumping regime, one where it is easier for
government to conduct investigations and faster to get an outcome. Table 4 summarizes
Philippine legislation.
Table 4. Philippine Legislation
Year Legislation Implementing Regulations Remarks

1978 Tariff and Customs None It was hardly used and
code section 301 lacked implementing
procedures.
Government agencies
were unprepared to
handle anti-dumping
investigations.
1994 R.A. 7843 – Anti- Tariff Commission Was passed before the
dumping act of 1994 Regulations WTO came into force
and deliberately
contains inconsistent
provisions.
1999 R.A. 8752 – Anti- Tariff Comission None
dumping act of 1999 Regulations
Thailand
The history of Thai laws also typifies the pattern presented. The earliest
legislation on anti-dumping was the Anti-Dumping Act B.E. 2507 (1964). After this,
there was the Ministry of Commerce Notification on Principal and Procedure to Collect
Surcharge on Unfairly Priced Imports and Subsidized Imports, B.E. 2534 (1991 MOC
Notification). According to Sutham (2008), this law borrowed much of its content from
the U.S. unfair trade statutes, but was not well known and was hardly used. The
relationship between the 1964 Act and the 1991 MOC is that the latter never technically
replaced the former. The 1991 MOC was made to be consistent to the Export and Import

Act B.E. 2522 (1979), so the author does not know what the status of the 1964 act was at
this time. In any case, Thailand's current anti-dumping regime operates according to the
framework put down in the Anti-Dumping and Countervailing Act, B.E. 2542 (1999)
which formally replaced the 1964 Act.
One reason that Sutham (2008) claims why Thailand came up with the 1999 law
was that it was a response to a challenge from Poland in the WTO for allegedly violating
numerous provisions of WTO Anti-dumping Agreement.4
Yoshida and Ito (2007) notes that the 1999 Act and the 1996 notification are
essentially the same law and that the 1999 Act was just made in order to make the law
more permanent since an Act carries a different character from a Notification (which can
easily be changed within the ministry). The 1999 Act also uses wording that is similar to
the WTO (Sutham, 2008)
The evolution of Thai law follows similar patterns with the other countries in this
study, having an old law passed before ascension into the GATT/WTO and then having
the law replaced in with another law with improved procedures and more GATT
consistency. Indeed, the 1999 law is more detailed than the 1991 MOC especially with
regard to the institutional arrangement and allegedly, according to Sutham (2008), has
wording based largely ADA. Table 5 summarizes Thai legislation.
Table 5. Thai Legislation
Year Legislation Implementing Regulations Remarks

1964 Anti-Dumping Act None Almost never used
B.E. 2507
1979 Export and Import 1991 MOC Notification This notification coexisted
Act B.E. 2522 with the 1964 anti-dumping
law. It never amended it.
1996 1996 MOC Notification Amended the 1991
notification and acts as
implementing regulation of
the export and import act.
1999 Anti-Dumping and Officially repealed the
Countervailing Act, 1964 law.
B.E. 2542
4
Communications among WTO members on anti-dumping legislation are discussed in Chapter VII.

Vietnam
The case of the Vietnamese anti-dumping regime is special. They were

latecomers in the WTO, their first inkling of an anti-dumping law came in 1997. Their
anti-dumping regime, only reached the final form of their anti-dumping regime in 2006
(with The Decree No. 04/2006/ND-CP which sets up an anti-dumping committee),
making them the last country to have adopted an anti-dumping law in this study.
Vietnam has probably benefitted from lessons in anti-dumping from its neighbors. This
also means that they do not follow the same pattern of the development of anti-dumping
laws as their neighbors.
Vietnam only joined the WTO in 2007. The anti-dumping ordinance was enacted
in 2004 in preparation for the challenges of WTO membership. This situation was
similar to the one the Philippines found itself in as it was preparing to ratify the in which
the country was preparing to legalize the GATT in 1995.
Anti-dumping and anti-dumping regulations were already recognized as important

in the late 1990s as Vietnam was in the midst of its Doi Moi (economic restructuring)
program. In the Trade Law of 1997, anti-dumping was mentioned for the first time in a
legal document. Article 8 of the Trade Law of 1997 specified dumping as an unfair
competition which was punishable as a crime which was punishable by penalties such as
administrative fines ad compensation in case the act caused material injury. This
arrangement was not very effective because material injury was defined as a legal
liability which would have been inconsistent in modern international trade law and was
rather difficult to enforce (Le & Tong, 2009)
In 2001, the Ordinance of Price was passed. Dumping was made illegal in
Vietnam when it damages the interests of businesses and of the state, but it only applied
to foreign businesses operating in Vietnam (Le & Tong, 2009) so it must have operated
much like an anti-trust law rather than an anti-dumping law which limited its overall
effectiveness at protecting domestic industries.
Le and Tong (2009), list down the other legal documents that complete the

Vietnamese anti-dumping regime. These are:
 The Decree No.90/2005/ND-CP sets detailed regulations and

guidance for implementing the Ordinance on Anti-dumping of
Imports into Vietnam. This law was made pursuant to the Law on
Export and Import Duties of 1991 (amended in 1993 and 1998)
 The Circular No.106/2005/TT-BTC from the Ministry of Finance lays

out guidelines on the collection, remittance and refund of anti-
dumping duty and anti-subsidy duty.
 The Decree No. 04/2006/ND-CP sets up the Council for Handling of

Antidumping, Anti-subsidy and Safeguard cases and defines its
functions, responsibilities, judiciary authority and organizational
structure.
The legislation of Vietnam is summarized in table 6.
Table 6. Vietnamese Legislation
Year Legislation Implementing Regulations

1991 Law on Import and
Export Duties
Circular No: 90/2005/ND-CP
2004 Ordinance No. 20- Regulations and Guidance for
2004-PL- Implementing a Number of
UBTVQH11 Provision of the Ordinance on
"Against Dumping Antidumping of Imports into
of Imported Goods Vietnam
into Viet Nam"
No. 106/2005/TT-BTC Guiding
the collection remittance and
refund of anti-dumping tax and;
No. 04/2006/ND-CP sets up the
Council for Handling of
Antidumping, Anti-subsidy and
Safeguard cases
Observations

The process of adoption and evolution of anti-dumping laws are very similar
among the cases. Even the case of Vietnam seems typical if we look at it in the light of
the date it became a WTO member. In all cases, the pivotal moment was when the
country was preparing to become a WTO member in which time the country scrambled to
enact an anti-dumping law which would allow it to protect domestic industries in the new
environment. The evolution of anti-dumping laws among the countries is summarized in
the timeline in figure 2.
Figure 2. Evolution of Anti-Dumping Laws Among the Countries
B. Institutional Arrangement
By looking at the pertinent legislation and government anti-dumping websites, the

author is able to get an idea of the institutional landscape governing anti-dumping in
these countries. By looking at the institutions, the author is able to see certain patterns.
One of them is the separation of functions among agencies and these functions are:
 Final Decision Maker – This agency makes the final decision to

impose a duty on dumped goods. Often, the final decision maker also
handles applications/petitions for anti-dumping duties and sometimes

is the one that initiates the dumping investigation on its own accord
and regularly reviews decisions.
 Investigating Agency – Agency in charge of gathering information on

normal values, export prices, import volumes, existence of injury etc.
Sometimes, it may not be a formal and separate agency but a dedicated
committee attached to the final decision maker.
 Auxiliary Agencies – Commonly the customs department which can

be relied upon to provide information on prices and volumes when
needed.
Another area where institutional arrangement converged in is in the degree of

centralization: i.e. one government body (usually the department or ministry of industry
and trade) accepts the anti-dumping petition, then hands it down to a lower body serving
under it (a specialized anti-dumping committee/commission) to collect data and to
determine whether dumping and injury is occurring. This lower body then sends a report
back to the higher authority which then decides whether or not to impose anti-dumping
duties. The task of collecting dumping duties and preliminary dumping duties usually
lies with the finance ministry/department. There is divergence in the institution chosen
for resolving anti-dumping disputes diverges among the countries studied: For example,
the Philippines assigns this task the court of tax appeals (a body under the judiciary)
whereas Vietnam leaves this to the trade minister (a body under the executive branch).
Related to convergence in institutional arrangement is whether the system is

unitary in investigation of dumping and injury, which means that one body investigates
both. In this study, all these countries feature unitary anti-dumping arrangements: i.e.
one government agency; as opposed to bifurcated systems that use separate agencies for
investigating injury and dumping independent of each other.
This next portion will discuss the institutional arrangement per country.

Indonesia
It was noted earlier in this chapter that Indonesia operated its anti-dumping
regime on a law that only contained general provisions and guidelines. The author
believes that Indonesia grants substantial discretion to its Anti-Dumping Committee to
compensate for the vagueness of its laws.
Article 2 of Decree No. 136 says that the tasks of KADI are as follows:
(a) investigating dumped goods and subsidized goods;
(b) collecting, examining and processing pieces of evidence and

information;
(c) proposing the imposition of anti-dumping and countervailing duties;
(d) carrying out other activities determined by the Minister of Industry and
Trade;
(e) making reports on the realization of tasks.
Aside from these tasks, KADI shall handle problems over Indonesian exported
goods which are alleged to be dumped goods by a foreign country, a task not given to
equivalent bodies in the other countries of this study. Lastly, KADI is also assigned the
following functions:
(a)formulating policies to cope with dumped imports and subsidized goods;
(b)examining, consulting and handling all problems relating to dumped

imports and subsidized goods;
(c)controlling and directing other activities to cope with dumped imports and
subsidized goods; and

(d)formulating policies to cope with Indonesian exported goods which are
alleged to be dumped goods.
The members of this body are composed of representatives from the Ministry of
Trade and Industry (who chairs the body), Ministry of Finance and the Ministry of
Agriculture. Representatives from other relevant ministries are sometimes invited to join
meetings and investigations. While originally being under the Ministry of Industry and
Trade (whose representative chairs it), in 2000, "The Minister (of Industry and Trade) no
longer chairs KADI but rather he will act as an adviser of the committee so as to make it
more effective" (Asia Pulse, 2000). It also has the effect of making KADI even more
independent of the Ministry of Industry and Trade. In spite of this, there is still some
clamor among business groups. In one instance, an Indonesian Steel Executive was
quoted saying, "KADI is an independent institution which only gives recommendations
on anti-dumping import duty to the Finance Ministry after probing into cases on dumping
allegations." Indeed many businessmen wish that KADI was given greater powers to
decide to impose anti-dumping duties and not just to recommend it (Asia Pulse, 2007).
Assisting the KADI in its investigation is the Operational Team of Anti-Dumping,

while being under the supervision of the KADI and is tasked with gathering information,
monitoring of allegedly dumped products, evaluate dumping duties and price undertakings.
Appeals and Judicial Review in the 1996 law are to be resolved by the Appeal Institute
which was created for customs affairs. Later, the Appeal Institute was dissolved and
replaced with the Tax Dispute Settlement Board which has full jurisdiction over the
decisions of KADI as Anti-Dumping legislation is part of the Custom Laws which falls
under the Tax Law of Indonesia.5
Malaysia
The Malaysian law gives the responsibility of handling anti-dumping cases to the
5
The issue was raised in a notification by Indonesia in the WTO. Questions from the United States and
Argentina were sent to Indonesia regarding the change specifically on the Tax Dispute Settlement Board's
relationship with KADI and with the Customs Law. The questions and the reply re reproduced in
document G/ADP/Q1/IDN/13-G/ADP/Q1/IDN/13.

Ministry of International Trade and Industry (MITI). From what can be gleaned from a
reading of Malaysian legislation and information being presented in government websites,
it seems that the acceptance of petitions and investigation are made by the MITI. The MITI
does not make a final decision to impose a duty; rather it makes a recommendation to the
Ministry of Finance who shall be the one to make a decision. This arrangement seems to
make the investigating agency and the decision making body independent from each other
since both ministries should be at the same level below the executive. The collection of
duties shall be conducted by an officer of customs. References to a division of powers
within MITI are hardly made in legislation and in government websites, so organization is
not as clear as Indonesia's KADI, what is clear from communications with the WTO is that
the MITI has an Investigating Authority (IA) which accepts petitions and initiates
investigations.6 The High Court takes care of any appeals or disputes regarding the validity
of anti-dumping duties should they arise.
Philippines
The Department of Trade and Industry – Bureau of Imported Services (DTI)

accepts petitions for anti-dumping coming from industrial sectors and the Department of
Agriculture (DA) accepts the petitions in case of agricultural products. They accept
application, initiate investigation, render preliminary ruling and final determinations.
The Philippines is the only country in this study that makes such an arrangement and
evidence coming from records in the House of Representatives suggests that this is the
result of independent problem solving.
The Tariff Commission (TC) is the body that conducts formal investigations the
results and findings of which are then reported to either the DTI or DA Secretary who, in
case of affirmative findings, will issue Department Order imposing AD duties.
The Bureau of Customs (BOC) which is under the Department of Finance (DOF)
is supposed to assist the investigation by providing information relevant to the
6
G/ADP/Q1/MYS/2 - G/SCM/Q1/MYS/2


investigation such as volume of imports, prices, information about foreign producers etc.
Appeals are handled by the Court of Tax Appeals which is a judicial body
independent of influence from the DTI/DA.
In the past, the DOF was the anti-dumping authority under the 1978 Tariff and
Customs code. The DTI came into the picture in the Anti-Dumping Act of 1994 which
assigned either the DOF or DTI as the anti-dumping authority. The 1999 Anti-Dumping
Act removed responsibility from the DOF completely and left it with the current set up.
Thailand
The Ministry of Commerce (MOC) is assigned the responsibility of handling anti-

dumping cases and is even authorized to issue ministerial regulations specifying
methodologies, and procedures concerning the determinations of dumping, subsidies,
injuries, anti-dumping measures, countervailing measures, reviews. The department of
foreign trade, a body under the MOC is supposed to handle the investigation of dumping
and injury.
The Customs Department is supposed to assist the MOC by collecting

information for it when requested and the Ministry of Finance is given the power to craft
regulation for the Customs Department.
Lastly, there is an advisory body called the Committee on Dumping and Subsidy
which is made up of representatives from the Ministry of Commerce, Minister of
Finance, Ministry of Foreign Affairs, Ministry of Agriculture and Cooperatives, Ministry
of Industry, Board of Investment, Department of foreign Trade, Department of Internal
Trade and members of the cabinet. It is tasked with the following duties:
(i) to perform their duties involving anti-dumping and countervailing measures

under this Act;
(ii) to approve or reject undertakings;

(iii) to serve as advisors with regard to the formulation of ministerial regulations
and notifications to maintain compliance to this Act;
(iv) to perform other functions as prescribed by the Act or assigned by the

Cabinet.
All decisions made by the committee shall be made by a majority vote of all the members
present.
The 1964 act assigned the Ministry of Finance the task of handling anti-dumping
cases. The 1991 MOC which was based on the 1979 Import and Export Act shifted the
anti-dumping authority to the Ministry of Commerce. This shift in institutional
arrangement can be seen as a quirk of fate as it was only because the Ministry of
Commerce which came up with the notification even while the 1964 act was still
applicable (Yoshida & Ito, 2007). The department under the MOC that was in charge of
anti-dumping matters was the Department of Business Economics. When the 1996 MOC
Notification came out, this role was shifted to the Department of Foreign Trade.
When the 1999 act was made, it can be said that the MOC was maintained as the
authority out of convenience as well as to comply with the GATT agreement.
Vietnam
The Ministry of Industry and trade (MOIT) accepts petitions and makes the final
decision on the application of anti-dumping measures. In addition to this, Article 7 (2) of
the anti-dumping law also states that "the Government shall set up, and specify the
organizational apparatuses, functions, tasks and powers of, anti-dumping bodies under
the Ministry of Trade, including:
a. The anti-dumping investigation agency (known today as the Vietnam Competition

Administration Department or VCAD), which shall investigate and look into anti-
dumping cases and, when necessary, propose the Trade Minister to apply
provisional anti-dumping taxes

b. The council for handling of anti-dumping cases, which shall consist of a number
of standing members and other members who shall work on each case to review
the conclusions of the investigation agency, discuss and decide by majority on
whether the goods are dumped into Vietnam or not, causing or threatening to
cause material injury to the domestic industries; and propose the Trade Minister to
issue decisions to apply anti-dumping taxes.
Other ministries and ministerial level agencies and the People's Committees are
also tasked to coordinate with the MOIT (within the scope of their respective tasks and
powers) in performing State management over anti-dumping measures and applying anti-
dumping measures.
Appeals and disputes are supposed to be handled by MOIT but this role may be
transferred to Vietnamese courts if the parties are not satisfied by the decision or if the
MOIT itself is unable to make a decision.
Observations
As noted earlier, the institutional arrangement among the countries is very similar:
The division of tasks is similar as well as the level at which the decision is made. For
example, the decision making authority is always at the ministerial level and the
investigating authority is usually body directly supervised by the same decision making
body (with the exception of Indonesia which diverged in 2000) and is tasked with
recommending the kind of action the decision making body has to make. Auxiliary
agencies are also usually connected with the ministry of finance and the Review body is
usually a judicial court independent of the decision making authority. The reason for this
outcome seems to be that this may be the optimum set-up and division of tasks, after all,
it was noted by Vermulst (1997) that further separation of tasks may be too complicated
and require more expertise and sophistication in implementation than developing
countries are likely to have. Table 7 is the division of tasks among the countries in this
study.

Table 7. Institutions involved in anti-dumping
Country Anti-Dumping Investigating Agency Auxiliary

Authority Agencies
Indonesia Ministry of Trade and Indonesian Anti-Dumping Operational Team
Industry Committee (KADI) of Anti-Dumping
Malaysia Ministry of Finance Ministry of Trade and Industry
Philippines Department of Trade and Tariff Commission Bureau of
Industry/Department of Customs
Agriculture
Thailand Ministry of Commerce Department of Foreign Trade Customs
and; Committee on Dumping Department
and Subsidy
Vietnam Ministry of Industry and Vietnam Competition Other ministries
Trade Administration Department and; and ministerial
Council for Handling of Anti- level agencies
Dumping Cases
C. Procedural Level
For this section, the author had to rely on several authors to guide him on specific
aspects or procedures in anti-dumping law that can experience convergence or divergence
(The authors he turned to as reference include Vermulst, 1997; Blonigen and Prussa,
2001 and; Horlick and Vermulst, 2005). From a reading of these laws, the author decided
to look at the following aspects of anti-dumping for convergence:
1. Public interest provision – This means that the imposition of an anti-dumping

duty has to be within the public interest for it to be allowed. Some countries
may or may not have it.
2. Transparency – This refers to how the countries treat confidentiality of

information. It can range from a very transparent treatment meaning that
every piece of information submitted to the investigator may be viewed by
other interested parties or even the general public, or information may be
completely restricted and everything in between. This also applies to the
publishing of information relating to the decision to apply anti-dumping
measures.

3. Levy of Duty - Levy of the duty refers to the method in which an estimate of
the dumping duty is computed and collected. This commonly comes in the
form of either prospective or retrospective duties.
4. Provisional and Retroactive measures – Provisional duties are duties imposed

on an exporting country before one arrives at a definitive decision.
Retroactive measures are duties meant to address dumping before the anti-
dumping petition was filed. The concern here is to determine whether these
measures exist or not and the rules that govern their use.
5. Initiation of Investigation – This refers to the requirements that domestic

industries must accomplish and processes that they have to pass before the
dumping investigation takes place. Requirements for the investigation to take
place.
6. Determination of Injury – All anti-dumping laws contain a provision that

states that the dumped product should be the cause of the injury of the
domestic industry. In other words, determination of injury is how countries
seek to make a causal link between dumping and injury. How is this reflected
in the law? Does it contain specific instruction regarding the treatment of
evidence?
7. Determination of normal value – The evidence and procedures that go into the
determination of normal value and export prices.
It is important to note that the laws differ in terms of detail. Some laws (or set of
laws) my be so highly detailed such that it governs the tiniest detail of an anti-dumping
investigation, while in some other countries, the law is left deliberately vague and
therefore, procedures and methodologies are often left to the discretion of the institutions
handling the investigation. The author will also try to account for the level of detail
present in the anti-dumping law.
Public Interest Provision
The public interest provision is a provision that would prevent the imposition of
an anti-dumping duty if the anti-dumping authorities believe that the imposition of a duty

will generally be detrimental to the public. The public interest clause is not included in
the GATT and thus it is completely up to the discretion of legislators whether to include
it or not. One can take the presence of a public interest provision as evidence that the
country is trying to lower trade barriers, as little as though it may seem (as a public
interest provision makes it harder for a domestic industry to succeed in anti-dumping
duties). Convergence in this area can be seen as a (weak) case of a "race to the bottom"
because the country, while still desiring to protect its local industries, still tries to keep its
regulatory regime as open as possible. Table 8 below summarizes the public interest
provisions in the countries being studied.
Table 8. Public Interest

Country Summary of Rules Sections
Indonesia The law does not contain any public interest
provision.
Malaysia The public interest clause applies at the decision to Article 20 no. 4
start an investigation, meaning that the investigation (c) (in the 1998
must be in public interest. In case circumstances amendment)
have changed during the investigation, the Article 25 no. 2
investigation may be terminated provided it is in the Article 26 no. 1
public interest. After the final determination has (b)
been made, the authority may also decide whether to Article 27 no. 2
apply dumping duties based on public interest. The (c)
acceptance of undertakings must also be in public Article 28 no 1 (e)
interest.
Philippine There is no public interest provision. However, Par. b
s frivolous filings are discouraged because a security
is levied upon the initiation of an investigation which
is meant to pay for the damage that an investigation
may cause should the foreign producer be found to
be not guilty of dumping.
Thailand The imposition of an AD measure must be made in Section I Art. 7
the public interest, taking into account both the
domestic industry and the consumer.
Vietnam If the imposition of a dumping duty is against public Article 40 no. 1
interest, the minister of trade may reject the
imposition of dumping duty. Another provision

states "The application of anti-dumping measures
must not cause harm to the national socio-economic
interests."
With regards to this provision, only Malaysia, Thailand and Vietnam seem to
have inserted a public interest provision in their laws. 7 Note also that there are nuances:
i.e. Vietnamese authorities may reject the imposition of duties, which is similar to the
Malaysian arrangement as opposed to Thailand which must reject the measure under the
same circumstance. Also, in a communication to the WTO from Malaysia, the Malaysian
government explained that "Public interest" may cover a wide range of factors including
the interest of consumers and downstream producers of the imported product. (Note:
Whilst at the same time taking into account the need to promote competitive
environment). The public interest test could not lead to a modification of the amount of
such duties.8
Transparency and Confidentiality
These provisions refer to the treatment of evidence and dissemination of

information by the anti-dumping authority and the investigating authority. The provision
in the ADA is Article 6 – "Evidence". Specifically, the agreement seeks to ensure that
certain guidelines and standards of fairness, transparency and confidentiality are followed
in the anti-dumping investigation, particularly with regards to the gathering of evidence.
Table 9 is a summary of the rules that countries apply according to their most recent anti-
dumping laws or amendments.
Table 9. Transparency and Confidentiality

Indonesia Evidence and other information submitted to the Chapter IV Article
investigating agency may be examined by other 13-15
interested parties provided that they are not
confidential in nature which the government may not
disclose without the other party's consent. Should the
government end up using confidential information as
the basis of the final decision, the government may
disclose it.
7
A public interest provision in Philippine anti-dumping law is actually unnecessary because it is
guaranteed in Article XII of the 1987 Constitution
8
G/ADP/Q1/MYS/6 – G/SCM/Q1/MYS/6

Malaysia All information will be freely available to all parties, Section 34 no. 1-3
except in the case of confidential information which (in the
will be given due protection. amendment)
Philippine The Philippine law does not say anything regarding Par. e
s the availability of information confidential or Par. h no. 5
otherwise. Confidential information from the
defendant is to be protected. Before the final
determination is made, government is to disclose in
writing the essential facts under consideration to the
interested parties in a sufficient time to defend their
interests.
Thailand Confidential information will be protected. Article 26 and 30
Information/evidence under consideration for the
final determination will only be disclosed to
interested parties just before the final decision is
made (just enough time for interested parties to
defend their interests).
Vietnam Information is freely available except when Article 15
confidential.
From what can be seen in the table, the standards and degree of confidentiality are
similar across countries. There is no system that makes all submitted information freely
available, confidentiality is held in high regard. Information is also treated as
confidential only when a party requests confidential treatment which it also has to show a
good cause for it.
Levy of the Duty
Levy of the duty refers to the method in which an estimate of the dumping duty is
computed and collected. According to Vermulst (1997), there are two ways in which a
duty may be levied: Either prospectively or retrospectively. A prospective duty is where
the dumping margin is computed beforehand and then applied to all imports of the
dumped good over the course of the period in which the dumping duty applies. Interested
parties may request for review in which case, the dumping margin will change and hence
the duty will also change. A notable user of prospective duties is the EC. A retrospective
duty on the other hand uses the actual dumping margin which is computed regularly
through reviews (usually every year). A notable user of retrospective duties is the US.
Table 10 summarizes how duties are to be levied.

Table 10. Levy of Duty

Indonesia Rules are not very detailed. Levy is probably Customs Law Article
prospective since the customs law states anti- 19
dumping duties shall be imposed on dumped Anti-Dumping Law
goods at the maximum amount of the margin Article 1 no. 4 and
between normal value and export price of such Article 4
goods and the use of average weighted margins to
be applied to all producers. Furthermore no
arrangement exists for regular annual reviews for
changes in dumping margin.
Malaysia Malaysia will only take a duty lower than the Article 15 no. 2;
dumping margin if it is sufficient to remove Article 25 no. 8
injury. Dumping margin is computed beforehand
making it a prospective levy.
Philippin Among the things that the anti-dumping Par h no. 4-5
es investigation has to reveal is the amount of anti- Par k
dumping duty to be imposed as well as the Par l
duration. This makes Philippine levies Par o
prospective. Cumulation of imports is also
practiced in the Philippines. Interested parties
may also request a review of the duty.
Thailand Dumping duty should be determined beforehand Article 18
and should only be sufficient to remove injury Article 49
and should not exceed the dumping margin. Article 50
Average weighted margins should be used when
there are several producers of the dumped
product. Producers/exporters may also request
for reviews of their dumping duty and may be
refunded if duty exceeds the duty necessary to
counteract injury.
Vietnam The dumping duty is levied prospectively except Article 5 no. 1;
in the case of when exporters of the goods that Article 24;
are subject to antidumping duties did not export Article 42 no. 1-3
such goods to Vietnam during the period of (According to Circular
investigation, on written request, government no 90/2005/ND-CP)
shall determine individual margins to be imposed
retrospectively.
One could see that all countries in this study levy prospective duties with the
exception of Vietnam which applies retrospective duties in special cases only.

Furthermore, it seems that the prospective method was already in place in these countries
at the outset. There was never a significant change in policy.
Provisional and Retroactive Measures
Provisional anti-dumping measures are duties imposed on a dumped product

during the period of the investigation before a decision has been made to impose a
"definitive" anti-dumping duty. Article 7 enumerates the conditions in which provisional
anti-dumping measures may be imposed. An important condition as states in number 1
(ii) is that a preliminary affirmative decision has already been reached before imposing
provisional anti-dumping measures. According to Czako, Human (2003), the AD
Agreement is silent on the kinds of preliminary duties that it allows and it is left to
national practice. Commonly this may be an ad valorem, specific (a fixed amount on a
per unit basis) or variable duties (difference between the normal value and the export
price).
Retroactive measures are tackled in Article 10 of the ADA. This article allows
for both the provisional and definitive application of retroactive measures for products
entered not more than 90 days before application provisional measures. All countries in
this study abide by this rule. Table 11 examines the provisional and retroactive measures
in place.
Table 11. Provisional and Retroactive Measures

Country Provisional duties Retroactive duties
Indonesia They may be paid in advance in These may be collected if
Article 18, the form of cash. The kind of duty dumped goods were imported in
19, 20 & 31 preferred seems to be variable huge quantities in a short time.
duty.
Malaysia They take the form of a security These duties may be collected if
Article 24 & equal to the dumping margin. dumped goods were imported in
25 no. 7-8 Duty takes the form of variable huge quantities in a short time. It
duty may also be collected if injury is
found to be difficult to repair or if
the has been a history of dumping
Philippines Takes the form of a cash bond not Duties may be collected if
Paragraph f greater than the provisionally imports were dumped at a high
&m determined dumping margin. Ad volume over a short time and if
valorem duty seems preferred there was a history of dumping.

("equal to the provisionally Retroactive duties may not be
estimated anti-dumping duty") collected if products were
imported for the purpose of
consumption.
Thailand Provisional duties may be applied Retroactive duties may already be
Part IV or a cash bond collected. Duty collected after a preliminary
Article 41-42 shall not be higher than the determination is made.
& Part VI preliminary dumping duty. Ad
51, 53 valorem duty is used and duty may
be lowered over the course of the
investigation if it is sufficient to
remove injury.
Vietnam Provisional duties will be paid in May be collected if it was found
Article 20 & cash deposits or any other that there was a sudden surge in
Article 23 measures prescribed by law. Ad imports which may make injury
valorem duties are applied which difficult to fix.
must not exceed preliminary
dumping margins.
All countries here make use of preliminary and retroactive duties aside from the
definitive duty. All systems also require that the preliminary duty must be paid in
advance be it in the form of cash or as a bond (or some other security) for variable duties.
All countries apply retroactive duties only if the dumped product was dumped quickly
and in high volumes in a short period of time. It is also worth noting that the detail
differs among their laws, for example, the Philippines is the only country in this study
that codifies the AD requirement in Article 10 no. 8 that no retroactive duties may be
levied on product entered for consumption prior to the date of initiation.
Initiation of Investigation
This procedure describes the process that a domestic industry has to follow in the
filing of an anti-dumping petition and the requirements it has to fulfill before the petition
becomes a full-fledged investigation.
The functional provisions in the ADA are located in Article 5 – "Initiation and
Subsequent Investigation" which describes the circumstances in which an anti-dumping
investigation can be initiated. Paragraph 1 of the agreement states that the investigation
to determine the existence and degree of dumping be initiated in the form of a written
application by the domestic industry. Paragraph 2 proceeds to describe the kind of

information necessary in the anti-dumping investigation, specifically the volume and
prices of the products in question in the places in which it is sold. Paragraph 4 requires
that sufficient support for the anti-dumping petition has been made by other domestic
producers (or at least 50% of the total production) before an investigation can be
initiated. Paragraph 6 states that authorities may initiate an anti-dumping investigation
on behalf of domestic industries only if the authorities have sufficient evidence that
dumping has probably occurred.
While it is not indicated in the ADA, some countries require that evidence must
also be submitted in the filing of a petition and some countries even provide assistance to
their domestic producers in order to comply with this.
A summary of convergence in this procedure is in table 12 below.
Table 12. Initiation of Investigation

Indonesia The petition is accepted by KADI, but the law does Article 8
not go into much detail about what the petition
should contain.
Malaysia Written request for an AD investigation must include Section 20 and all
sufficient evidence of dumping and subsequent subsections
injury. The decision to accept an application is done (According to the
through voting. 1998 amendment)
Part II of 1994
regulations
Philippine The request for an AD investigation must be done Par. b
s through a written application and must already
include evidence of dumping and subsequent injury.
Furthermore, the petitioner must pay a surety bond
to answer for any damages which the importer may
sustain by reason of the filing of a frivolous petition.
Thailand Thai laws are also vague as to the filing process, Article 33
simply requiring a written petition made in
accordance with MOC regulations which have not
been specified.
Vietnam Request must contain information that describes the Article 9
imported good, volumes, export prices for the past
year as well as evidence that dumping and
subsequent injury is occurring. The applicant may
also give a specific request as to the amount of duty,
time limit and the extent of application of the
instrument.

As evident in the table above, there is some degree of divergence in the filing
process, or at least that the difference lies in the degree of detail in the laws. Some
require that positive evidence already be submitted before the petition is accepted, thus
putting the burden of proof on the domestic industry. The practice of Malaysia is also
rather unique in that the decision to initiate an anti-dumping investigation is done through
a vote in its anti-dumping authority.
Aside from convergence in this area, all anti-dumping regimes included in this
study allow for investigations to originate ex oficio. The inclusion of ex oficio initiations
in the legislation of the countries being studied is already widespread and can thus be said
to have converged.9
Determination of Injury
Determination of injury is how anti-dumping authorities link the existence of

injury with the dumped product or how they demonstrate that there is a causal link.
Normally a country would consider what is known as price undercutting and price
suppression which is the lowering of prices and the prevention of a necessary increase in
prices as a result of dumped imports. Also considered are a reduction in the market share
of a domestic producer and the retardation of a domestic industry. Table 13 contains
provisions that describe injury as it occurs.
Table 13. Determination of Injury

Indonesia Indonesian law does not elaborate on what it considers Article 1 no. 11
injury under its law except in the case of injury in the
sense of preventing/retarding the establishment of an
industry in Indonesia.
Malaysia Malaysia considers market share: actual and potential Section15 no.1
decline in output, sales market share, profits, (b)
productivity, returns or investments as caused by the Section 21
dumped product or any other factor other than (According to
dumping. It also considers price undercutting: actual the 1998
and potential negative effects on cash flow, amendment)
inventories, employment, investment, wages, growth
or ability to raise capital. The link must be
9
The occurrence of an ex oficio in actual application of anti-dumping duty is very rare as the vast majority
of initiations originate from domestic industries, at least in the countries being studied.

demonstrable. This is done by seeing whether there
has been an increase in the volume of dumped imports
and if there has been significant price undercutting by
the dumped imports.
Philippine Material injury takes the form of price undercutting. Par. i
s Injury is also considered to exist if it is found that
there is a negative bearing in indices for that industry
such as, but not limited to, actual or potential decline
in output, sales, market share, profits, productivity,
return on investments, or utilization of capacity;
factors affecting domestic prices; the magnitude of
dumping; actual and potential negative effects on cash
flow, inventories, employment, wages, growth, and
ability to raise capital or investments. A causal link
between injury and dumping is demonstrable by
looking at the volumes of imports and its effect on the
prices of domestic products. The anti-dumping
authorities are also to look for price undercutting or
suppression by the dumped product.
Thailand Depression of prices, decrease in market share, Article 20-22
retardation of the development or establishment of a
domestic industry comprise injury. This is determined
by examining the volumes of the dumped imports and
the effects of the dumped imports on prices in the
domestic market for like products and, the consequent
impact of these imports on domestic producers of like
products. The investigating agency must also rule out
factors that may cause injury and make sure that this is
not attributed to the allegedly dumped import. The
likelihood for dumping to occur is studied by looking
at the exporting country's disposable capacity for the
dumped product and the ability of other export
markets to absorb it.
Vietnam Material injury is the state of significant decline or Article 2 no. 7;
growth restriction in terms of production capacity, Article 28
prices and sales of goods, profit, production, (According to
employment, investment and other indexes of the Circular no
domestic industry, or the state of retardation of the 90/2005/ND-
establishment of a domestic industry. The CP)
Investigating authority is to consider the following
elements to determine injury: The volume and prices
of the non-dumped like products imported into
Vietnam; The contraction in demand or changes in the
patterns of consumption with respect to the domestic
like products; The export performance and

productivity of the domestic industry and other
elements deemed relevant.
All countries basically consider price undercutting, decline of market share and
retardation of the development of an industry as indicative of injury. The laws, especially
Indonesia's differ in terms of the level of detail in them.
Article 3 of the WTO ADA also sets some standards for the collection and
examination of evidence to guide authorities in determining whether injury to the
domestic producers is actually occurring. Under this article, section 2 states that the anti-
dumping authorities have to consider an increase in the volume being imported of the
dumped product and if it has an effect on the domestic price of the good. Section 5 states
that it must be demonstrated that the alleged dumped product is actually causing injury.
The demonstration must reveal a causal link between the injury and the dumped product
and the authorities must use all relevant evidence to do so. Section 7 authorizes the
imposition of dumping duties on the basis of a "threat" of injury under the standards
enumerated in the same section.
All countries consider volume increases and price suppression and/or price
undercutting by the dumped product. This, when combined with the country's definition
of injury can sound very similar if not identical in construction to the ADA. Compare the
provisions in the above tables with article 3.4 of the ADA:
The examination of the impact of the dumped imports on the domestic

industry concerned shall include an evaluation of all relevant economic
factors and indices having a bearing on the state of the industry, including
actual and potential decline in sales, profits, output, market share,
productivity, return on investments, or utilization of capacity; factors
affecting domestic prices; the magnitude of the margin of dumping; actual
and potential negative effects on cash flow, inventories, employment,
wages, growth, ability to raise capital or investments. This list is not
exhaustive, nor can one or several of these factors necessarily give
decisive guidance.

Determination of Normal Value
Normal value usually refers to the price of the good traded under ordinary
circumstances within the country of origin. In investigations, if the export price is less
than the normal value, then dumping is said to be occurring.
Table 14. Determination of Normal Values

Country Determination of Normal Values Sections
Indonesia The law states the normal value is the normal price of Article 1 no.3
the good traded under ordinary circumstances in the
exporting country. The law does not elaborate on
how this normal value is supposed to be
obtained/constructed and evidence that may support
it.
Malaysia* In case normal value cannot be determined by looking Section 17 (1998
at the prices at which the good is sold in the exporting Amendment)
country, normal value may be constructed by looking
at the sales of that product in a comparable 3 rd
country. Alternatively, normal value may be
constructed using an estimated cost of production
(fixed and variable costs, production, marketing
transport, etc) and adding to it a reasonable profit.
The law discriminates against non-market economies,
which means that authorities have to use "appropriate
methods" for determining normal value instead of
what has been prescribed in law.
Philippines Normal value simply refers to the price of the product Par. s (2-3)
in the ordinary course of trade for the exporting
country. If the normal value cannot be determined,
GATT provisions are said to apply. Export price is
the either the ex-factory price or F.O.B price at the
point of shipment. If these two are not available or is
unreliable, then export price may be constructed at a
reasonable basis.
Thailand Normal value is constructed by looking at the prices Article 15
of a batch of goods that represent no less than 5
percent of exports to Thailand. If this cannot be
found or is unreliable, normal value may be
constructed by looking at the sales of that product in a
comparable 3rd country or, by constructing the price
based on reasonable costs and profits. If the product
comes to Thailand from an intermediate country,
normal value is to be constructed based on price
information from that intermediate country. If this
information is unreliable or unavailable, then the

normal value will be taken from price information
from the country of origin.
Vietnam Normal value simply refers to the price of the product Article 4 no. 2-3
in the ordinary course of trade from the exporting
country. If this is not available or is unreliable,
normal value may be constructed by looking at the
sales of that product in a comparable 3rd country or,
by constructing the price based on reasonable costs
and profits. The normal value of transshipped goods
will be the prices in the country of origin if such
information is not available from the intermediate
country.
*Malaysian rules were further amended to include the construction of an average weighted cost for the
product that should provide for the recovery of costs by the producer within a reasonable period of time.
Evidence was broadened to include actual costs incurred by the producer for allegedly dumped product.
The laws seem to converge (with the exception of Indonesia due to its lack of
detail) on the methods of determining normal value which would involve looking at the
prices of the good in the course of normal trade and if such data is unavailable or
unreliable a normal value may be constructed. Notable is the Philippine law section (n)
which says: "If the normal value of an article cannot be determined, the provisions for
choosing alternative normal value under Article VI of GATT 1994 shall apply."
Other Provisions
The anti-dumping laws of the countries described here have idiosyncrasies of

their own. It is worth discussing a few of them.
Regional producers are given status in Malaysia and Thailand, i.e. distinction is
given to some regions where the prices of a dumped import differ across regions whereas
in other countries in this study, the price is taken to be constant throughout the country.
In the case of Thailand, it recognizes that injury may not be present in all the parts of its
country. Malaysia also discriminates against non-market economies stating that the
determination of normal value need not follow the method stated in their anti-dumping
law, rather it is to be determined in an "appropriate manner". Other countries do not
make the same discrimination.

Philippines in its current law seems to be the only country that discourages the use
of anti-dumping for petitioners by making them pay the price of damages of an
unsuccessful/frivolous petition. The Philippines also imposes sanctions on importers
guilty of dumping. In the 1994 law, it even includes a provision to confiscate allegedly
dumped products and does not allow for undertakings.
It is hard to find any idiosyncrasies in Indonesian anti-dumping law, probably

because its rules are not very detailed, they are also very short. As noted, Indonesia
seems to give plenty of discretion to its investigating agency.
The impression that one would gain from looking at Vietnamese law is that it is
rather advanced. It contains provisions on almost every acceptable anti-dumping practice
and does not seem to contain any potentially conflicting practices either nor any
significant idiosyncrasies. It seems that Vietnam may have learned a lot from the
practices of other countries in anti-dumping.
Ease of use seems to be an important factor in the provisions that the laws tend to
take. The examples of this that have been presented so far include the treatment of
confidential information and transparency, and in the forms of duty being levied.
Another example that has not been discussed previously is that all of the countries in this
study get their anti-dumping duty "prospectively" meaning that the dumping duty to be
levied over the course of the period of levy instead of "retroactively", meaning that an
estimate of anti-dumping liability is first determined and this forms the basis of the duty
which may change every year as a new estimate is determined. All this can take a lot of
time and money and can be too complicated given the experience of most developing
countries.
Another general trend has been towards greater GATT consistency. The
Philippines, Thailand and Vietnam exhibit this behavior. The Philippines made amended

its 1994 law in 1999, Thailand did the same for its 1996 law in 1999 as well. Vietnam
passed a series of ordinances beginning in 1997 that became more GATT consistent until
it culminated in the 2004 ordinance. Despite this trend, there are still some GATT
inconsistencies in anti-dumping practice and provisions which are left vague.
Concluding Observations
The countries being studied here do not exhibit much divergence with regard to
the contents of their laws. This can be traced to their desire to be WTO consistent where
there is a need to be. It is also observed that at the very least they follow the minimum
obligations as stipulated in the ADA. At the same time there are differences
(idiosyncratic is another term for that) in their practices, especially where the ADA has
been silent. In the Philippine case, it managed to retain some inconsistent (even illegal)
provisions in their law. It should be pointed out that while countries converge at the
internationally agreed upon common ground, the underlying intent of their law is
reflected in the way that the provisions are constructed, such as in the case of the
Philippines, authorities seem to discourage anti-dumping petitions through provisions that
discourage frivolous petitions. At the same time, countries like Thailand, Malaysia and
Indonesia, with no such provisions seem to actually encourage the use of the instrument.10
With regard to the institutional arrangement that the countries set up, they all
tended towards centralization. Commonly it is the minister of trade and industry (DTI,
MITI and MOIT), the minister of finance through its customs arm handles the collection
of duties and provisional anti-dumping measures.
All countries being studied today can be said to be using neoliberal economic
framework to varying degrees. Vietnam has its Doi Moi, Thailand likewise has
abandoned ISI early on. The Philippines has been trying to liberalize its economy since
the late 1970s, but to the present day has some bottlenecks in liberalization especially
10
This is corroborated by looking at anti-dumping statistics. In the data set generated by Chad Bown
(2010), the Philippines since 1999 had only a total of 9 initiations only around 3 had positive
determinations. Contrast this with Indonesia, Malaysia and Thailand whose filing and affirmative decision
statistics are in the double-digits.

with regard to the present constitution which is perceived to be anti-globalization.
Malaysia on the other hand was an early leader in economic liberalization.
The best evidence for saying that these countries have embraced neoliberal
economics is in their joining of various international, regional and bilateral trade
agreements, notably the WTO and AFTA
Thailand, Indonesia and Malaysia have merged their countervailing/anti-subsidy

laws together as one piece of legislation. This has the advantage of being able to use the
same institutions in handling both kinds of cases and which may help foster efficiency
and institutional capacity especially in the area of information gathering. Likewise, one
of the salient features of the Philippines' Anti-Dumping Act of 1999 was to establish
common legal provisions with its countervailing and safeguards measures such as
prescriptive periods.
CHAPTER VI
MECHANISMS OF CONVERGENCE
The aim of this chapter is to present and discuss the mechanisms of convergence
that were present and that may have influenced changes in anti-dumping laws in the
countries in this study. The researcher found out that among the mechanisms present,
International Harmonization through the WTO ADA is the primary mechanism present.

Transnational Communication was found to have occurred through the WTO Committee
on Anti-Dumping Practices (ADP) although it seems that the communication reinforces
the mechanism of International Harmonization. Regulatory Competition occurs through
Domestic Pressure but it happens more of as policy experimentation rather than as a race
to the top or bottom.
A. International Background
Anti-dumping laws only started to proliferate during the 1980s and 1990s. What
was the international situation that caused this proliferation? During these decades there
was a radical change in the way countries traded with each other. Economic
liberalization in one form or another was being adopted by economies all over the world.
As a result, countries began to abandon traditional means of trade protectionism such as
tariffs and quotas. In the face of this and with the continuing need to have trade
protectionism, countries—especially those of the developing world—had to find new
ways to protect their industries from foreign competition. Not only did these laws
proliferate, they ended up adopting similar procedures and concepts. The wording in
many cases is very similar to the construction in the ADA.
The multilateral system, as exemplified in the GATT and the WTO was
instrumental in creating an environment that was conducive to economic liberalization.
Also under the WTO system, the use of anti-dumping was allowed as a concession to the
member economies that needed to be able to provide protection to domestic producers
when needed (at least the need arose as a result of the Uruguay round negotiations). The
GATT Anti-Dumping agreement was developed in order to manage the use of anti-
dumping by member countries. The Anti-Dumping Agreement itself developed over
time beginning with the Kennedy Round in the mid 1960's. The Tokyo Round was able
to come up with an Anti-Dumping code in 1979. This code first recognized that anti-
dumping is only justifiable if a dumping case threatens or causes actual material injury to
an established industry or prevents the establishment of an industry. The code justifies
itself by asserting that it is desirable to have "equitable and open procedures as the basis
for a full examination of anti-dumping cases" and that it would facilitate the carrying out

of dispute settlement of anti-dumping disputes. This Anti-Dumping code is much shorter
and less detailed than the current one and lacks some measures such as sunset reviews,
transparency provisions and rules on judicial review. This is understandable given that
the old code is only composed of 10 pages compared to the Uruguay Round Agreement
which is composed of 26 pages. This code led the way for the creation of the Committee
on Anti-Dumping Practices which allows member countries to consult it regarding the
operation of the agreement. The Uruguay Round anti-dumping agreement is much more
detailed and built on.
As noted the adoption of anti-dumping laws can be the result of wanting to protect
not only against dumped imports but also to counter the sanctioning of exports
(Nakagawa, 2007). Anti-dumping can be seen as a tit-for-tat strategy or as strategic
retaliation.
However, this system of economic liberalization and the role of the WTO in it
only explains the proliferation of anti-dumping regimes (and subsequently similarities in
patterns of adoption and amendment of their legal bases) and convergence in procedures
that are explicitly discussed in the ADA. It does not explain convergence in areas not
covered by the ADA.
The following section intends to discuss the evidence of some of the mechanisms
of convergence in light of the preceding chapters:
B. Existing Mechanisms of Convergence
Political Demand or Pressure – Is the stimulus that leads to the convergence

policy through the imposition of laws from another power. In the case of anti-dumping,
the author has not found any evidence that a more powerful country has actively put
pressure on any of the countries being studied to adopt or revise any provisions in their
anti-dumping laws. One reason for the absence of pressure is in the very nature of anti-
dumping laws: they are protectionist measures with "unlimited uses" one of which is
retaliation (Barral, 2003). It would be against the interest of the pressuring state to apply

the pressure. In the case of the Philippines, as the Anti-dumping act of 1999 was under
deliberation in the lower house, the issue of whether any representative of a foreign state
ever approach them regarding anti-dumping law reforms came up. As this issue was
raised, the sponsors of the reform asserted that there was no such pressure. Political
pressure however seems to exist in the compliance of countries to WTO requirements,
specifically the ADA. Because political pressure seems to be directed towards
compliance of WTO, the pressure takes place within the context of the organization
which means that the countries doing the pressuring are exerting it through bodies,
mechanisms and arrangements created by that organization. In the case of anti-dumping
laws, this body would be the Committee on Anti-Dumping Practices.
International Legal Obligation – This is the stimulus that leads to policy

convergence through compliance with international law and other agreements.
Holzinger, Knill and Sommerer (2008) in their empirical study use the ordinal metric of
ascension to an international organization. This is too simplistic however as once
established, institutional arrangements will constrain and shape the domestic policy
choices, even as they are constantly challenged and reformed by their member states.
Member states also engage in international organizations voluntarily and actively seek to
influence corresponding decisions and arrangements, the impact of international
harmonization on national policies constitutes no hierarchical process; it can rather be
interpreted as "negotiated transfer" which makes it the intermediate between international
harmonization and transnational communication (Dolowitz and Marsh 2000).
Competitive Pressure – is the stimulus that leads countries to adopt similar

policies because the country wants to be more competitive relative to other countries.
What the author is looking for is evidence that a country adopted a law or a provision
based on the intention of economic benefit or as a retaliatory measure. There are a
number of instances when competitive pressure seemed to play a role in a change in anti-
dumping law and it also seems very closely related to the occurrence of domestic
pressure since the lobbying of domestic groups may be triggered by poor trade outcomes
which may have been avoided with "good" anti-dumping legislation. This is actually

seen in the Philippine anti-dumping case of hot rolled coils from Russia. This is
interesting because as the investigation was ongoing in 1999, Philippine steel producers
sent their representatives to House of Representatives to discuss their concerns. This is
also seen in the case of the lobbying of Indonesian business groups towards a more
empowered KADI.
Transnational Communication – The author believes that the WTO Trade Review
Mechanism and the Committee on Anti-Dumping Practices are examples of lesson
drawing. Under the Committee on Anti-Dumping Practices, countries may send
questions and clarifications to that body with regard to anti-dumping practices and
procedures who would then try to reply as soon as possible with a solution that is
consistent with the WTO.
It can be argued that the WTO is more of a "negotiated transfer" and, as the case
has shown, some members may be willing to tolerate a certain degree of inconsistency in
their law. Thailand, since it has made quite a number of anti-dumping investigations and
is the target of many investigations itself it is not surprising that it is rather active in the
Committee of Anti-Dumping practices. The country itself has come under numerous
dispute settlement procedures, pressure from these procedures which have challenged the
legitimacy of certain of its anti-dumping measures may have led the government to
model their anti-dumping law very closely with the GATT Anti-Dumping Agreement as
has been claimed in Chapter V.
Given these assumptions of how governments are expected to act in the presence
of the mechanisms of convergence, the rest of this chapter will describe evidence of the
existence of these mechanisms and the effect they had on anti-dumping regimes.
C. GATT/WTO as the Context of Political Demand, International

Harmonization and Transnational Communication
This section aims to situate the mechanism of international harmonization and

transnational communication within the context of the WTO. International

harmonization, as discussed in the theoretical framework is the mechanism that uses the
stimulus of international legal obligation in order to achieve the response of compliance
with the said international law. In this case, it refers to the adoption of WTO consistent
procedures and practices and even WTO wording in an anti-dumping law.
WTO membership on its own does not require a country to have an anti-dumping
law; it merely establishes a right to have anti-dumping laws. The Anti-Dumping
Agreement is there to ensure that members follow the same procedures and practices.
And as noted earlier, it was fairly easy for many new users to institutionalize anti-
dumping laws by simply copying the agreement. In the words of Junji Nakegawa (2007),
the anti-dumping agreement in itself, "has had some catalytic effect on anti-dumping
proliferation." One can actually see this in the cases of the Philippines, Malaysia,
Thailand and Indonesia whose laws (at least in their English translation) use the same
terms and the same methods and procedures as the Anti-Dumping Agreement.
However, WTO membership does not automatically imply harmonization of laws.

It may take a bit of prodding; one reason for the convergence of laws is that the WTO
also facilitates transnational communication among countries. Transnational
communication according to the framework is broken down into the stimuli of: Problem
pressure, which comes from when countries try to learn from the experiences of countries
facing the same problem and then copying a model found elsewhere (i.e. lesson drawing);
Parallel problem pressure which comes from when countries facing a common problem
work out a common policy model and adopt it; Emulation in which a country's desire for
conformity leads them to copy widely used policy models and; International policy
promotion which occurs when a country facing the need to legitimize s policy regime,
adopts a model recommended by the international community.
In the case of the WTO, the Committee of Anti-Dumping Practices (ADP) acts as
a forum in which members countries can facilitate lesson drawing and exert legitimacy
pressure by serving as a venue for countries to question one another's legislation without

having to go through the dispute settlement process. It must be noted that the ADA itself
is also a model developed by developed and developing countries in order to manage
possible difficulties they may face in economic liberalization. Compliance in this way
also depends on the "communicative potential" of the organization, to use Holzinger,
Knill and Sommerer's term which refers to how often meetings with representatives are
scheduled and how often members inform one another of the status of compliance.
The following sections will examine some of the communications that were
delivered to the countries in this study that have to do with anti-dumping procedures.
This method is not novel as it has already been featured in Ito and Yoshikawa (2007).
Indonesia
The researcher noted that Indonesia's anti-dumping laws were rather vague and
silent on many aspects of anti-dumping as stipulated in the ADA and other aspects of the
procedure, the governments of other countries seemed to notice this as well and they
endeavored to seek clarification from Indonesia on this vagueness. Early in the year
1997, Indonesia received a series of communications from the WTO Committee on Anti-
dumping practices, these questions were being posed by the European Community, Hong
Kong, Korea, Turkey and US. Indonesia responded to these questions in a
communication dated May 27, 1999.11
It was revealed that the main concern of the EC was on certain procedures related
to the timing of the collection of provisional anti-dumping duties and reviews. They also
raised one question on the collection of retroactive duties. From Indonesian law, it
appears to be that if the relevant goods are found to be dumped that the first part of the
test for retroactivity (a history of dumping) would already be met. Indonesia's replies to
all of these concerns served to reassure the EC (and other parties reading the
communication) that Indonesia would not violate the ADA.
Hong Kong wanted to know what the status of the ADA was to Indonesia. For
11
G/ADP/Q1/IDN/6 – G/SCM/Q1/IDN/6

example, if Indonesian legislation is in conflict with ADA, which one would take
precedence? The reply of Indonesia was that the officials concerned would apply
domestic laws in compliance with the agreement. Hong Kong also asked Indonesia as to
what procedures it has in place for Judicial Review to which Indonesia replied that they
have the Appeals Institute in place for these matters. Hong Kong was also concerned
regarding the numerous provisions of the ADA which are absent in Indonesian
legislation. The communication listed the following notable examples:
- establishment of normal value (ADA Article 2.2)

- notion of fair comparison and provisions (ADA Article 2.4)
- exchange rates (ADA Article 2.4.1)
- comparison methodology (ADA Article 2.4.2)
- determination of injury (ADA Article 3.1, 3.4 and 3.5)
- threat of material injury (ADA Article 3.7)
- standing of complainant (ADA Article 5.4)
- de minimis dumping margin and negligible imports for immediate termination
(ADA Article 5.8)
- provision of full text of written application to the known exporters, the exporting
country and interested parties (ADA Article 6.1.3)
- newcomer review (ADA Article 9.5)
With the absence of these provisions in their legislation, Hong Kong asked how
Indonesia proposes to ensure compliance with the ADA and whether it contemplates
legislative steps to further bring its legislation into compliance with ADA.
Korea had a similar question to Hong Kong: That the Indonesian AD regulations
as a whole seem to be lacking in many issues compared to the WTO AD Agreement. It
has been noted that there is a lack of clarity regarding the following issues in particular:
-Market visibility
-Start-up cost adjustment
-SG&A, profit for constructed value

-Adjustments to export price and normal value
-Level of trade adjustments
"How will Indonesian authorities deal with these technical criteria?" the
Communication from Korea asked. The Indonesian authorities replied to this question by
reassuring Korea that it would fully comply with all the requirements of the WTO
Agreement and that these may necessitate some amendments but in meantime, the anti-
dumping proceeding brought to date, scrupulously adhere to all aspects of the
Agreements.
In 1999, the Indonesian authorities decided to give the jurisdiction over judicial
review of anti-dumping to the Tax Dispute Settlement Board from the Appeals Institute.
Naturally, the Americans and the Argentineans would like to know what anti-dumping
had in relation to Indonesian Tax laws when it was supposed to be covered by Customs
law and how this fits with the ADA.12 Indonesia's reply in the same communication:
The Tax Dispute Settlement Board has the full jurisdiction over the
decisions of the Indonesian Anti-Dumping Committee. Article 35 of
Government Regulation 34, 1996, confirms that the Anti-Dumping
legislation is part of the Custom Laws which falls under the Tax Law of
Indonesia.
…
The Ministry of Finance does not have authority over the Agency, as the
role is limited to one of administration. The Judge is independent and
approved by the President.
Malaysia
When the 1993 anti-dumping law and subsequent enabling regulations were first
notified to the WTO in 1995, there did not seem to be any vague provisions or
inconsistencies needing clarification. The only notification that Malaysia received before
its 1998 anti-dumping law amendment was from Turkey which only requested that it be
provided a timeline of its investigation in 1997.13
12
G/ADP/Q1/IDN/13 – G/SCM/Q1/IDN/13
13
G/ADP/Q1/MYS/2 – G/SCM/Q1/MYS/2

In 1998 after Malaysia notified WTO of its 1998 amendments to the anti-dumping
law, it received requests for clarification from the EC, Japan and the US.
The EC wanted to know what Malaysia meant by a "non-market economy" and

how one says that it is a non-market economy. Another question the EC had, together
with Japan was regarding Malaysia application of its public interest provision and if it
could lead to the modification of a duty. Malaysia assured the EC that when determining
if it is a non-market economy, they have several objective criteria and that it would be
determined on a case-by-case basis. The public interest provision on the other hand
should take into account the interest of the consumer and downstream producer of the
product while at the same time trying to promote a competitive business environment.
The public interest clause unfortunately is not based on any written criteria.
The 1998 amendment of Malaysian law as the United States observed broadens
the definition of "interested parties" by adding that "any other party as the Government
deems appropriate" may be treated as an "interested party". The US is interested to know
what kind of groups Malaysia intends to grant interested party status to in amending this
provision and what criteria Malaysia will use to determine when it is appropriate to grant
this status. Malaysia replied that it intends to provide for parties such as end-users and
processors of the subject merchandise. The criteria that Malaysia uses is simply whether
the party will be affected by the dumping action.
The United States was also rather interested as to the disclosure of confidential
information in Malaysia. According to the 1998 amendment of its law, the act ensures
that the Malaysian anti-dumping and countervailing duty authorities will provide all
interested parties opportunities to see all relevant non-confidential information. The US
wants to know if Malaysian authorities "offer" access to confidential information even if
it would go against the ADA. Malaysia replied that it does not offer and generally does
not provide confidential information. Apparently, this response got the US' attention as it
sent another communication to Malaysia not long after receiving the above reply. The
communication contained more questions regarding the treatment of confidential

information.14 The first question was whether Malaysia could cite any instance that
Malaysia granted a party access to confidential information. To which Malaysia
responded that it has never done so. US then asked what kind of procedural safeguards
Malaysia will follow in granting access to confidential information. Again, due to the
lack of experience, Malaysia does not have any procedural safeguards. Furthermore,
when asked, Malaysia responded that it is currently not examining any procedures that
would provide confidential information.
As seen in the case of Malaysia, there were many questions on how Malaysia
intends to implement its laws. This is valuable information for other countries as they get
to know the practices of another country and to learn from it (since practically everyone
has access to these communications)
Philippines
In 1996, the Philippines received a series of questions from Argentina, Australia,

EC, Hong Kong and the US regarding its anti-dumping law which at the time was the
Anti-Dumping Act of 1994.15
The main observation that Argentina, Australia, EC and Hong Kong made is that
there may be several inconsistencies between the 1994 anti-dumping law and the ADA.
Hong Kong listed the following possible inconsistencies:
-Paragraph (a) authorizes the Commissioner of Customs to hold the

release of the questioned importations. Article 5.9 of the Agreement
provides that an AD proceeding shall not hinder the procedures of customs
clearance.
-Paragraph (a) provides for imposition of provisional measures upon

determination of a prima facie case of dumping within 20 days from
receipt of petition or information. Article 7.3 of the Agreement provides
that provisional measures shall not be applied sooner than 60 days from
the date of initiation of the investigation and Article 7.1 thereof provides
14
The questions and Malaysia's replies are in G/ADP/Q1/MYS/8 – G/SCM/Q1/MYS/8
15
The questions of these countries and Philippine responses are in G/ADP/Q1/PHL/1 – G/SCM/Q1/PHL/1

that such measures may be applied only if the conditions set out therein
are fulfilled.
-Paragraph (b) requires all parties concerned to submit their respective

memoranda within 15 days from notice. Article 6.1.1 provides that
exporters or foreign producers shall be given a minimum period of 30 days
for reply to questionnaires.
-Sub-section D authorizes collection of dumping duties on dumped articles

and sub-section E provides that all importation of like articles within 150
days immediately preceding the filing of the protest are covered by the
investigation. Article 10.6 of the Agreement however provides that subject
to certain conditions, a definitive anti-dumping duty may be levied on
products which were entered for consumption not more than 90 days prior
to the date of application of provisional measures. Article 10.8 further
provides that no duties shall be levied retroactively prior to the date of
initiation of the investigation.
-Sub-section E provides that the dumping duty shall be equal to the

difference between the actual export price and the normal value actually
existing at the time of importation as determined by the Commission. Sub-
section L provides that the established dumping duty shall be subject to
adjustment based on whichever higher of the prevailing normal values as
defined in paragraph b-1. Article 9.3 of the Agreement provides that the
amount of the anti-dumping duty shall not exceed the margin of dumping
as established under Article 2. Accordingly, the applicable normal value
for the establishment of dumping margin should be the latest one
determined, not necessarily the higher one.
-Sub-section O.2 defines the various elements of "cost of production"

including administrative, selling and general expenses, shipment - related
expenses and profit, but artificially limits their minimum level to certain
percentages of the production costs. Article 2.2.1.1 of the Agreement
however requires cost be normally calculated on the basis of actual
records.
Furthermore, numerous provisions of the Agreement are apparently not reflected

in the Philippines legislation, or the codification may not be adequate. Notable examples
are as follows:
- sufficient domestic sales (Article 2.2 and Footnote 2)

-establishment of costs (Articles 2.2.1 and 2.2.2)
-notion of fair comparison and relevant provisions (Article 2.4)

-exchange rates (Article 2.4.1)
-comparison methodology (Article 2.4.2)
-cumulative assessment of injury (Article 3.3)
-threat of material injury (Article 3.7)
-standing of complainant (Article 5.4)
-on-site verification (Article 6.6, 6.7 and Annex I)
-sampling (Article 6.10)
-duty for exporters and producers not selected in sampling (Article 9.4)
-application of best information available (Annex II)
The Philippines clarified all those who asked regarding ADA consistency that the
1994 anti-dumping law actually precedes the ADA in terms of ratification. In case of
conflicts, the administering government agencies have the flexibility to use the ADP
Agreement as a guideline for implementation. New implementing rules and regulations
will be issued if there is a strong need for it.
Australia also wants to know whether the Philippines plans to revise its legislation
or to issue regulations. The Philippines simply replied that the administrators have the
flexibility to implement provisions from an international agreement and that parties may
seek a review of decisions by these authorities within regular courts.
One question raised by EC is In relation to normal value, why have the

Philippines not incorporated the detailed provisions of the Agreement, particularly in
relation to sales at a loss, constructed value and fair comparison? The reply was that
while the Act does not explicitly stipulate such detailed provisions, the agency concerned
will adopt the ADP Agreement as its principal guideline in the course of its analysis and
evaluation of the case.
In 1999, the Philippines enacted the Anti-Dumping Act of 1999 which effectively
replaced the 1994 act. This new law addresses some of the inconsistencies pointed out by
Hong Kong such as the withholding of goods at customs, time limits for questionnaires,
and normal values to be used in determining the rate of duty. Thus this communication
may have influenced what provisions were included in the 1999 law.

In 2002, the EC and the US sent questions to the Philippines to ask about this new
law.16 In the communication, the United States wanted the Philippines to describe the
circumstances in which the Philippine government can revoke the importer's license or
charter for those guilty of dumping as well as disqualifying its officers from holding
official positions in corporations in the Philippines and the imposition of a fine equal to
twice the definitive anti-dumping duty (Sec. 4 of the 1999 Anti-Dumping Act). The
government replied that this provision is only active after a final determination has been
made.
Thailand
Thailand received numerous questions regarding its 1996 Notification on Anti-

dumping. According to Ito and Yoshikawa (2007), the questions were mostly about the
scarcity of provisions vis-à-vis the Anti-Dumping Agreement. The other countries were
simply worried that the absence of certain provisions would translate to arbitrary
administration by the Thai anti-dumping authority. The 1999 act also received
notifications with the comment that the 1999 act is basically identical to the 1996
Notification. Thailand commented that it has passed five ministerial regulations that
cover the insufficient parts of the act although up to now, English translations of these
regulations have not been sent to the WTO.
What can explain the countries' eagerness to communicate with Thailand

regarding its laws? This may have something to do with its history of anti-dumping.
Note that the countries that notified Thailand were Canada, EU, US, Hong Kong, Korea,
Poland, Turkey and Argentina. Canada, EU, US and Argentina in particular are among
the traditional users of anti-dumping and questions from these countries must have
carried much weight.
Vietnam
16
The questions of these countries and Philippine responses are reproduced in G/ADP/Q1/PHL/4 –
G/SCM/Q1/PHL/4

Vietnam has not relieved any questions regarding their anti-dumping instrument
and this may be due to the fact that the country has just sent its notification to the WTO
in 2009. Vietnam did send a report to the WTO in 2006 detailing the progress that it has
made in its trade policies, including anti-dumping.17 The report noted that at the outset,
Vietnam had no provisions on anti-dumping, countervailing duty or safeguard measures in
its legislation and that they needed to establish a proper legal and institutional framework to
enforce provisions on anti-dumping and countervailing measures and that the 2004
ordinance on anti-dumping (and other implementing regulations) were made for this.
Vietnam confirmed that his Government would ensure that any legislation in place at the
time of accession providing for the application of measures taken for safeguard, anti-
dumping or countervailing duty purposes would be in conformity with the provisions of the
WTO Agreements on Safeguards, on Anti-Dumping and on Subsidies and Countervailing
Measures.
Some Observations
A summary of the questioning that occurred in the ADP and the policy outcomes
are provided in table 15 below.
Country Nature of Questioning and Policy Results

Indonesia Repeated assertions that it would follow international law in practice even though
its laws contain many contentious provisions or stays silent.
Malaysia Countries requested clarification as to how it would apply confidentiality and
interested parties provisions. Questions relating to ADA consistency were not
brought up.
Philippine There were questions of WTO consistency in the 1994 law. Some provisions
s such as the withholding of goods at customs, time limits for questionnaires,
normal values to be used in determining the rate of duty were addressed in the
1999 law.
Thailand The main issue raised by other members against Thailand was the lack of detail in
its laws vis-à-vis the ADA. Thailand noted that it has already passed legislation
that addresses this lack of detail.
Vietnam Being the last country in this study to have adopted anti-dumping laws, one can
assume that it has benefitted from years of studying anti-dumping laws,
communications from the ADP and anti-dumping jurisprudence.
The ADA is an example of a commonly developed policy model, the existence of
which already suggests that there was a transnational problem on the controlling anti-
17
WT/ACC/VNM/48

dumping at the outset.18 The WTO Committee on Anti-Dumping Practices on the other
hand, seems to provide a venue for countries through its legislation notification system to
inform one another of legislation being passed on anti-dumping and an opportunity to ask
for clarifications among the members. In this way, the ADP facilitates lesson drawing
and international policy promotion (i.e. exerting legitimacy pressure). Another
observation is that the countries most commonly asking for clarification on the anti-
dumping laws of these countries are the traditional users: The EC, US, Argentina,
Canada and Australia. Hong Kong and Turkey are also rather active in asking for
clarifications. This mechanism seems to fall short of being considered political demand
or pressure because the countries in these communications do not resort to political or
economic sanctions or incentives to achieve compliance, although it still seems that these
traditional users have much at stake in ensuring that the other countries comply with
international agreements. This is why it seems that the communication occurring among
countries with regard to anti-dumping seems to reinforce compliance with international
agreements.
Another observation that needs to be made is that the ADP is not the only venue
in which the WTO and its members exert pressure on other members to change its laws
and practices. There is also the Dispute Settlement Body (DSB) in which countries can
challenge another country's laws and practices and force them to change it. The DSB was
not mentioned in the country cases because none of the five countries being studied ever
had their laws challenged in the DSB. In fact, the only instance a law was ever
challenged in this manner was the case of United States – Anti-Dumping Act of 1916 by
the European Community and by Japan in 2000.19 The issue in this case was that the
1916 anti-dumping act of the United States needed to be repealed because it contained
provisions that allowed for civil actions and criminal proceedings on importers who have
been found to practice dumping which is not allowed under WTO rules. The decision of
the appellate body was to compel the US to repeal the contentious law which was
18
This suggests the dual nature of the ADA which aside from being a commonly developed policy model is
also a legal obligation for members who agreed to it. In Chapter VII, the researcher will suggest that the
ADA is actually an example of a "negotiated transfer."
19
The appellate report of the case is WT/DS136/AB/R – WT/DS162/AB/R

completed 2004.
Another dispute case in anti-dumping is the practice of "zeroing" by American

anti-dumping authorities which violates Article 2.4 of the ADA. Zeroing is the practice
which can lead to an overestimation of a dumping margin. This is an ongoing case with
the potential to make the practice of zeroing illegal and in which case will force users of
anti-dumping to conform in its non-practice.
These cases, while they do not directly affect the anti-dumping legislation of
ASEAN countries, nonetheless serve as lessons for them to follow. Furthermore, as the
body of anti-dumping jurisprudence grows larger, anti-dumping rules and practices may
also change or otherwise become more constrained.
D. Anti-Dumping: "Race to the Top" or "Race to the Bottom"?
Regulatory competition occurs when countries facing competitive pressure

mutually adjust their policies in order to promote the competitiveness of domestic
industries or to attract more business activity from abroad by engaging in a race with
other countries to relax regulatory standards (hence "race to the bottom"). According to
Knill (2005) however, a "race to the top" can also occur when countries increase
regulatory standards such as in policy areas like standards and conformance.
Anti-dumping as a trade protection measure can engage in a race to the bottom by

making it difficult or restrictive for a petitioner to have an investigation and to get a final
decision such as by placing the burden of evidence on the petitioner, or by imposing so
many requirements for an investigation. This also applies to the country being
investigated through provisions such as price undertakings, retrospective provision of
duties, etc. Basically, many of the provisions in the ADA embody this race to the bottom
by ensuring that countries stick closely to international standards in the investigation, the
agreement ensures that international trade still goes smoothly in spite of the many anti-
dumping duties currently being enforced or investigations taking place.

It may also work as a race to the top. The "top" in this case is in terms of the
protection that a country can give its domestic industries. One example may be when
governments give more discretion to government agencies to come up with a higher rate
of positive determinations. Also, a government may offer aid to any industry seeking an
anti-dumping investigation.
The case of Vietnam is an interesting example of regulatory competition leading

to the adoption of anti-dumping laws. Le and Tong (2009) assert that the anti-dumping
duties being imposed on nearly 30 of its top export items and the inability of its producers
to effectively respond to these dumping allegations led the government to pass an anti-
dumping law as well as measures to protect its producers against countries seeking to
impose anti-dumping duties on it. Indonesia must have had a similar experience as
Vietnam, that many countries were imposing anti-dumping duties on its products, such
that it was forced to pass an anti-dumping law of its own. Interestingly, one of the
responsibilities of the Indonesian Anti-Dumping Committee (KADI) is to formulate
strategies and measures to cope with export goods alleged to be dumped by a foreign
country (Art. 3 & 4(d) of Decree No. 136)
Specific examples of amendments to laws that can serve as evidence of a race to

the top is the rearranging of the institutions that handle anti-dumping in Indonesia and the
Philippines. In Indonesia, the composition of KADI was changed so that a representative
from the Ministry of Trade no longer holds the chairman's position. This serves to make
the institution more independent of government, which can have the effect of making it
seem that an affirmative decision was not influenced by people in positions of political
power. Furthermore, as noted in Chapter V, there is still pressure from business groups,
especially in the steel industry, to give even more power to the KADI by bypassing the
Ministry of Trade in actually implementing the final decision. The Philippines, in
changing the anti-dumping authority from the Department of Finance to the Department
of Trade and Industry, was also trying to make anti-dumping investigations proceed more
efficiently by placing at the forefront an institution that deals specifically with trade
issues rather than an institution that is concerned with finance issues.

What the researcher observes with anti-dumping is that the laws still try to stick to
procedures and institutional arrangements commonly accepted in the international
community, as seen in the analysis of laws in the previous chapter. Some authors, have
noted that while at the surface, the laws seem to conform to international agreements, the
ADA itself left much to interpretation and in practice, the anti-dumping regime may
exhibit divergence (Aggarwal, 2007). It was noted in an earlier footnote that there is
divergence in practice among the countries in this study with the Philippines having the
fewest number of anti-dumping investigations and dumping duties levied compared with
Thailand, Malaysia and Indonesia which are all in the top 20 users of anti-dumping (no
data for Vietnam) (Bown, 2010). It is interesting to note that Indonesia has filed the most
anti-dumping petitions of all the countries in this study and has been the target of the
most investigations as well and this may have something to do with the seemingly high
amounts of discretion it gives to the anti-dumping authority and how its laws are less
detailed than other countries in this study.
The point is that while laws may seem to say one thing, practice may actually
differ. This does not mean to say that the pressures do not try to influence the text of the
law. These pressures came largely from domestic sources. Junji Nakegawa (2007) noted
that certain industrial sectors were quite successful in lobbying for anti-dumping
measures. The steel industries in both the Philippines and Thailand have both lobbied for
anti-dumping measures (Nakegawa, 2007). In the case of the Philippines, it was because
steel producers were facing cheap Russian steel. Nakegawa calls this anti-dumping as an
industrial policy or anti-dumping with a constituency.
This assertion is corroborated in the work of Blonigen and Prusa (2001) for the
traditional users of anti-dumping. According to them, traditional users of anti-dumping
laws frequently amend their anti-dumping laws, almost always to make anti-dumping
protection easier to grant. Not only does AD law allow politicians to offer politically
preferred industries without blatantly violating GATT/WTO principles, but they can also
tinker with the rules to broaden the scope and availability of AD protection. According
to Blonigen and Prusa (2001), the US has amended its AD laws at least six times in the

past 25 years. According to them, for politically powerful industries, losing a case is not
a sign that trade was conducted fairly but rather, it is taken as a sign that the law needs
amending.
What this means is that domestic pressure is actually closely linked to the
mechanism of regulatory competition in the direction of the regulatory "top". Without
these pressures, government would have no incentive to make their laws afford more
protection.
E. Summary
The researcher found evidence that competitive pressure led to the adoption and
further reform of the anti-dumping laws being studied. In the cases of the Philippines and
Thailand where existing anti-dumping policies were deemed as not being effective
enough and were thus amended. Indonesia made changes to its institutional arrangement
possibly to afford a better chance for petitioners to get an affirmative decision. For
Vietnam, having anti-dumping duties imposed on their producers may have prompted
them to make anti-dumping laws of their own in order to retaliate among other things. A
stronger mechanism for convergence in this study however would have to be
International Harmonization, at the same time Transnational Communication plays a role
in ensuring compliance with international agreements. One observation that can be made
regarding the communications sent to the countries in this study is that the traditional
users of anti-dumping (i.e. the US, EC, Argentina, etc.) seem to prefer higher levels of
detail in their laws and that they do not like giving much discretion to anti-dumping
authorities.
CHAPTER VII
POLICY CONVERGENCE IN PHILIPPINE ANTI-DUMPING LAW

So far, the study has discussed the state and direction of convergence in anti-
dumping and the mechanisms that were found to have influenced the convergence. The
process of convergence will be better informed by looking at the evolution of Anti-
dumping law in the Philippines. The Philippines is a typical case in Southeast Asia since
its laws and the history of the changes that its laws underwent are very similar to other
countries in this study, as seen in the previous chapter. Therefore, one would expect that
whatever pressures that caused Philippine laws to converge with the other countries is
present there too. Thus looking into the pressures present in the Philippine case will help
one understand the situation overall.
The goal of this section is to show which pressures have been registered in the
Philippine policy making process and how the Philippines has responded to these
pressures.
As mentioned in a previous section, the Philippine has had three anti-dumping

laws. The first was section 301 of the Tariff and Customs code, followed by R.A. 7843
(Anti-dumping act of 1994) and R.A. 8752 (Anti-dumping act of 1999) which were
applied as amendments to section 301 of the Tariff and Customs code. The author is
concerned with the changes that took place in the laws and the reasons why the
legislators found they had to change them. In order to do this, the author relied mostly on
a reading of minutes of meetings of the lower house and the senate as they deliberated the
contents of the anti-dumping law of 1994 and of 1999 as well as some related laws such
as the ratification of WTO, the deliberations of which were taking place at the around the
same time as the anti-dumping law of 1994, the discussion of which was thus colored and
the debates heated with references to the WTO ratification.
A. Anti-Dumping Act of 1994

The Anti-Dumping Act of 1994 originated the lower house, the deliberations of
that bill in congress was just short as it only took them one day before they agreed to send
it to the senate for their deliberations. The congressmen did not discuss any procedural
and methodological issues and merely asked what is meant by dumping, the rationale
behind anti-dumping law and why it is beneficial to have an anti-dumping law. In the
senate, discussion was livelier; (perhaps it was because the anti-dumping law was being
discussed at the same time as the ratification of Philippine accession to the WTO ). The
deliberations over the AD law in the senate took place on December 7, 9 and 12, 1994
and was sponsored by Senators Orlando Mercado, Gloria Macapagal, Tatad, Leticia
Shahani and Ernesto Herrera. In particular, Herrera was known as an advocate of trade
unions and labor in general, Macapagal is an economist by profession and has supported
the accession of the Philippines to the WTO. The rest of this section will discuss the
themes present in the Senate deliberations.
Necessity of the Law
In the deliberations, the principal sponsors of the AD law noted that there was a
need for a new anti-dumping law. The previous law, Section 301 of the Tariff and
customs code made dumping a fiscal concern under the Department of Finance (DOF).
This arrangement had a low rate of positive finding. As mentioned in the proceedings, of
the 41 anti-dumping cases, 30 were dismissed and only one case got a positive finding
from the DOF. Specifically, the sponsors mentioned that the new law would contain new
features such as:
1. The responsibility to make the decision to impose dumping duties is

transferred from the DOF to the DTI.
2. Provisional duties are to be in the form of a cash bond in order address

unscrupulous fly-by-night surety companies.
3. Rules to determine the normal value have been amplified.

4. Rules for determining injury have been relaxed which means that
injury need not be material, consequential or important to constitute
dumping.
5. A specific period for dumping procedures have been provided (Record

of the Senate, 1994: 182).
Sen. Macapagal, in her December 9, 1994 sponsorship speech of the bill clarified
its relationship to the GATT should it become law. She mentioned that the agreement is
very stringent in some aspects such as in the filing of an anti-dumping petition which has
too many requirements such as placing the burden of proof on the petitioner. It is simply
too much for a developing country such as the Philippines, the sponsors claim 20 (Record
of the Senate, 1994: 251)
He revealed that the intention was that the law would contain some
inconsistencies with the ADA and that harmonization would take place at a later date.
However as the Philippines was not yet a member of the WTO at the time and the
sponsors thought it may take some time before the WTO can take effect (in reality, the
Philippines became a member less than a month later) and so this law was intended to
protect industries in the period of transition of WTO compliance (Record of the Senate,
1994: 252). In this context, the anti-dumping law was seen as a necessary condition
before positive action on the ADA. Besides, the legislators were not yet under any
pressure to comply with WTO as the agreement has not yet been ratified at the time.
The senate, in drafting the bill of the law, took note of domestic interests. Sen.
Macapagal said that representatives of the agricultural sector approached them saying
that they wanted safety nets in order to cope with economic liberalization under the
WTO. Sen. Macapagal said that the law hope to make famers and industry "more
confident; they can face the new world of GATT with increased protection from anti-
20
The provisions that the senators are referring to here may be Article 5 of the ADA which for the purposes
of initiating an anti-dumping investigation requires, among other things, evidence of dumping, injury and a
causal link between dumping and injury. The domestic producer seemingly has the burden of proof. In the
1994 law, it is government agencies may assist the domestic industry in coming up with the evidence
needed to determine a prima facie case of dumping.

dumping law" (Record of the Senate, 1994: 251)
Since the law was made primarily in the interest of domestic industries and
agriculture, it should be seen that the law is to be considered as compliance to their
commitments to agriculture and industry and not as compliance to the GATT. Stated
another way, there was no need to rush GATT compliance as there was technically no
deadline for the compliance. They on the other hand are pressed for time to pass this
"stronger anti-dumping law" before they become fully committed to the GATT/WTO
(Record of the Senate, 1994: 252). Later on, Sen. Macapagal admitted: "We [the
sponsors] just have to confess that we assisted in the drafting of this bill with the view in
mind that we wanted to be as protective as possible of our farmers and our aggravated
industries" (Record of the Senate, 1994: 267)
The issue was raised by Sen. Raul Rocco as to whether it was the old law (section
301) that was unresponsive or is it the fault of the Tariff Commission (TC) for the old
laws perceived unresponsiveness (the TC handled anti-dumping investigations at the
behest of the DOF) (Record of the Senate, 1994: 253). With this point raised, he was
asked whether there was any way a provision can be made so that investigators in the TC
would not be bribed (provisions were later added to that dealt with officials that did not
perform according to what their duties prescribed. Sponsors Shahani and Herrera could
not give a direct answer promising that these concerns would be considered in the period
of amendment (Record of the Senate, 1994: 252).21
On December 12, 1994, the deliberations were continued. Sen. Rocco also did
not like the idea of the law having some inconsistencies with GATT. Sen. Macapagal
defended the original intention by saying that consistency may depend on how one looks
at the law. It is true that the current law has a few gray areas, but the sponsors say that
these make a good case for themselves (Record of the Senate, 1994: 298). An example
the sponsors gave from the last session was the need to establish a benchmark of price
difference to say that the price difference is injurious. The congress technical committee
21
This request never did get taken up again in the course of the deliberation. However, a penalty clause
provision appears in the 1999 anti-dumping law which makes dereliction of duty by government officials
punishable as a crime.

suggested 30%, industry claimed that it is too high and suggested 3%. GATT only wants
a "reasonable benchmark." In which case, the sponsors say that the law can be claimed to
be consistent with GATT (Record of the Senate, 1994: 261). 22 Another example was the
ADA's provisions on the levy of duty based on the threat of injury. ADA Article 3.7
states that a dumping investigation on the basis of a threat of injury must be "clearly
foreseen and imminent" and subsections of this article go on to describe situations of
increased import volume, capacity of foreign producers to increase volume and whether
the prices at which goods entering a country may depress domestic prices. Paragraph a of
the 1994 law does not need to determine any of these, it is enough to establish that the
prices of imports are below normal values to establish a prima facie case of dumping
(Record of the Senate, 1994: 301).
Sen. Maceda made one interesting observation from the proposed anti-dumping
law. He read from a senate report that: "A number of provisions in the revised anti-
dumping agreement simply reflect current US law or practice. For example, the new
agreement expressly recognizes the US practice of cumulatively assessing the impact on
the domestic industry of dumped or subsidized imports." 23 Sen. Macapagal agreed and
she said that she believed that the US had the "stricter" anti-dumping law (Record of the
Senate, 1994: 276).
Sen. Maceda later revealed that he had access to transcripts of debates in the US
as they were also in the process of amending their anti-dumping law. He mentioned that
at the time, the US senators were concerned with issues of: the standard of review;
greater transparency in anti-dumping investigations; de minimis dumping; import volume
margins; sunset reviews; cumulation of injury and; the recognition of anti-circumvention
practices and that the legislators had incorporated some but not all of the practices he
mentioned (Record of the Senate, 1994: 278).24
22
The author does not know exactly what benchmark the sponsors are referring to but they may be referring
to the de minimis rule.
23
The Philippines is the only country in this study aside from Malaysia that practices cumulation.
24
The final version of this law did not include sunset review procedures, de minimis dumping, import
volumes and cumulation of imports. The 1999 law already contained these provisions.

Sen. Tatad noted that the law did not contain any provision for voluntary
undertakings. When asked as to the reason why the bill at this stage does not contain
provisions for undertakings, Sen. Macapagal answered that "we [the sponsors] feel it is
better to be silent" (Record of the Senate, 1994: 303).25
After this, the bill underwent final revisions in grammar and style after that and
was then passed onto the executive branch. It was signed into law on the December 21
about two weeks before the Philippines acceded to the WTO in January 5 the next year.
B. Anti-Dumping Act of 1999
In contrast to the 1994 law, the congressmen were more active in the deliberations
of the new law. Some of the issues raised were reminiscent of the senate deliberations
five years ago. The deliberations in the lower house took place for two days in May 27
and then in June 1, 1999. The bill was introduced by Hon. Marcial Punzalan Jr. the bill
was created by the Committee on Ways and Means and the Committee on Trade and
Industry with the co-authors: Reps. Danilo Suarez; Joey Salceda; Alipo Badelles;
Herminio Teves; Angelito Sarmiento; Generoso Tulagan; Rolando Briones; Jesli Lapus
and; Barnardo Vergara. The congressmen sponsors who were active during the house
deliberations were Reps. Punzalan and Salceda. Rep. Salceda was a known economist.
The deliberations began with the house sponsors enumerating the merits of the
new act. One merit of which is that a clearer parameter is established for the purposes of
the computation of the anti-dumping duty as well as further refinements in the option to
impose the duty such as the inclusion of undertakings. The DTI was reasserted as the
institution which should have the mandate of handling the anti-dumping case which is in
keeping with WTO committments.26 Rep. Punzalan then started talking about the
domestic pressures they faced as they were drafting the law. Local industries particularly
in the downstream steel industry expressed grave and growing concern over alleged
25
The 1999 act contained provisions for voluntary price undertakings, in the deliberations in congress for
the new law, there was also a suggestion not to include undertakings as what the 1994 law has done.
26
In the final version of the law, the DTI would handle cases relating to the industrial sector while the
Department of Agriculture (DA) handles anti-dumping cases pertaining to the agricultural sector.

injuries caused by dumping of products like steel billets, steel coils, etc 27 (House of
Representatives A, 1999: 17)
The interpellations began with Rep. Apostol asking about what is dumping and
how it is determined. The concept of dumping was explained by Rep. Punzalan and the
point was made that while consumers may benefit in the short run from the artificially
low prices of imported good, they may lose in the long run because dumping may drive
away domestic producers and then the exporter may raise their prices again (House of
Representatives A, 1999: 29-30).
Rep. Apostol asked what would be the status of a foreign company under the anti-
dumping law if it buys a local company and begins to produce goods at a very low price
and drives away local competition. Rep. Punzalan clarified the issue, pointing out that it
would no longer be a case of anti-dumping, rather it would be a case of anti-
trust/competition policy (House of Representatives A, 1999: 39). This highlights the
close relationship that these two laws have with one another.
Rep. Apostol followed up with the question of whether or not the bill is already
obsolete as foreign companies are "changing their style because they know that all these
anti-dumping laws are being passed left and right by countries in the world." The
interpellator tells them that he is worried that by the time they pass the anti-dumping law,
they are already way behind. He also mentioned that the record of the 1994 law was
rather poor, of the 11 anti-dumping petitions submitted all but 5 were dismissed and only
2 were given affirmative action.28 Rep. Punzalan then reaffirmed that the anti-dumping
law remains a useful tool but it is just one tool among many that may be used to counter
27
The dumping investigation of Hot Rolled Coils (HRC) from Russia that the sponsors were referring to
makes an interesting case. The 1999 law was passed in the Senate while the anti-dumping investigation
was taking place. In order to avoid any protest that the 1999 law was inapplicable to the HRC case, the
published findings included a section on the application of procedural matters. They cited the case of
Republic vs. Court of Appeals, G.R. No. 92326, January 24, 1992 which held that: "Procedural matters are
governed by the law in force when they arise, and procedural statutes are generally retroactive in that they
apply to pending proceedings and are not confined to those begun after enactment although, with respect to
such pending proceedings, they affect only procedural steps taken after their enactment." (205 SCRA 356).
To read more of the case, go to http://www.tariffcommission.gov.ph/hrc.html.
28
To be fair, the reason for the low rate of affirmative finding may be due to the actual merits of the case
rather than to deficiencies in the law itself.

unfair trading practices (House of Representatives A, 1999: 40).
At this point in the deliberation, Rep. Apostol mentioned that an American author,
Greg Mastel advocates sunset reviews for anti-dumping decisions (House of
Representatives A, 1999: 43). Sunset review is a kind of review when a dumping duty is
removed after 5 years unless it is established that their removal will result in the
resumption of injury. The 1994 law did not contain any such provision now it was being
considered for the 1999 law together with voluntary price undertakings.
Rep. Defensor took the place of Apostol as interpellator and questioned the
proposed centralization of responsibilities to the DTI instead of the DOF. He was
worried that the proposed measure would result in too much centralization on the DTI.
According to Rep. Punzalan, the proposed measure will not completely centralize all
authority to the DTI since the law will still give DOF responsibilities through the Bureau
of Customs (BOC) which would provide data and evidence relevant to the dumping case.
In the end, the reason why the responsibility was given to the DTI instead of the DOF is
also because it is the preferred arrangement under the ADA (House of Representatives A,
1999: 50). Specifically, Rep. Punzalan reasoned that DOF should be concerned with
matters of revenue and since dumping is a trade matter and not a matter of revenue, it is
more appropriate that the DTI handle it.
Rep. Bunye brought up a case in international trade, the case of Clinton's

unilateral ban on what they perceived as dumping of steel by Russia (House of
Representatives A, 1999: 68). Rep. Punzalan assured that is not the intention of the law,
nor will it even be possible for the Philippines at this time and that the Philippine has to
follow guidelines in the WTO with regard to the course of action it can take. He noted
that the reason why the US can get away with such an action is because they already have
so many of these safety nets in place for their industries. The Americans are already far
ahead of the Philippines with regard to the effectiveness and sophistication of their
measures (House of Representatives A, 1999: 69). This segment of the deliberation
ended with the sponsors imploring that the law be passed at the soonest possible time as it
seeks to improve on many aspects of the 1994 law (House of Representatives A, 1999:

69).
One of these improvements written in the bill then being deliberated is that the
maximum time period necessary from the filing of the petition to a final determination
was reduced to 237 days. However, the domestic group, the Federation of Philippine
Importers (FPI) petitioned that the time be further reduced to only 6 months, but granting
such a request is not possible given the intricacies involved in an anti-dumping
procedure, the procedure simply cannot be rushed (House of Representatives A, 1999:
71-72).
The FPI according to Rep. Punzalan also suggested that dumping be made into a
criminal offense, however it is simply not possible since an unfair trade practice is not
punishable as a crime (House of Representatives A, 1999: 72-73).29 However, the final
form of the law incorporates a provision that allows importers found guilty of dumping to
pay a fine as well as to lose their license to operate in the Philippines. The only other
punishment that can be meted out in relation to an anti-dumping proceeding is in case of
the failure of government officers to do their duty which would result in their
prosecution. Note that this concern was also raised during the Senate deliberations for
the 1994 law but was not incorporated in the final version.
Lastly, Rep. Punzalan mentioned that the FPI also wanted to remove the voluntary
price undertaking clause so as to give more "teeth" to the anti-dumping measure (House
of Representatives A, 1999: 76). The price undertaking provision had to be retained
though, since it would otherwise go against the ADA. This incident is particularly
revealing since if one recalls the Senate deliberations for the 1994 anti-dumping law, the
sponsors of the bill would have the law remain silent on that provision. In this incident,
the legislators refused to bow down to domestic pressure in order to comply with an
international agreement.
On the next session in congress on June 1, the question on the role of institutions
29
Rep. Punzalan admitted in the deliberations that he actually finds criminalization unnecessary since the
dumping duties in principle should already be enough.

in the anti-dumping proceeding was raised again. Rep. Salceda also took over the
sponsorship duties from Rep. Punzalan. In the own words of the interpellator Rep.
Guinigundo: "Who will be the captain ball? Which department will oversee the
implementation of this anti-dumping law? Will it be the department of agriculture? Will
it be the Department of Trade and Industry or will it be the Department of Finance?" Rep.
Salceda's answered that the DTI will be the "captain ball". Rep. Guinigundo then
followed up that answer asking: "Where will be the Bureau of Customs? Will it just be a
water boy or an ordinary player?" Rep. Salceda replied: "It would be one of those
players, the forward perhaps" (House of Representatives A, 1999: 132).
Another interpellator, Rep. Fua noted that there were so many restrictions in the
anti-dumping law, such as the amount of duty that the exporting country has to pay
(which cannot exceed the dumping margin), the 50% of total production of like product
must support the anti-dumping petition for the initiation of an investigation on behalf of
an industry. The sponsor, Rep. Salceda noted that having so many restrictions must not
be feared as other countries are also subject to the same restrictions (House of
Representatives A, 1999: 140). Salceda continued with the following speech:
You know, if you will read the minutes of the WTO-GATT negotiation,
contrary to our own impression and it is quite prevalent in our country,
you will be surprised that it was the developing countries who asked for
the provisions. Because it is the developed countries who are more, I
think, in a position to continually use anti-dumping against products of
developing countries and therefore by imposing stricter provisions on anti-
dumping, in fact, it was meant to favor emerging economies like the
Philippines because it preempts developed countries…from closing their
markets through…"non-trade barriers" [sic] by the continuous use of … a
looser anti-dumping law (House of Representatives A, 1999: 142-143)
The line of inquiry shifted to the question of the need for WTO consistency. Rep.
Salceda said that it is important to make the law consistent with the WTO, otherwise, the
Philippines may incur the possibility of dispute settlements (House of Representatives A,
1999: 145).
This argument by Rep. Salceda seems to corroborate the idea of the ADA being a

negotiated transfer. The legitimacy afforded by the ADA for developing countries which
incorporated many of their demands makes it seem easy for legislators to justify
compliance. On the other hand, the ADA has a built in enforcement mechanism, the
dispute settlement mechanism which can bring many profound implications to a country's
trade relations if it is invoked and so, it would make it in the interest of the country to
make its laws WTO consistent.
In the next session on June 2, 1999, there was quite a debate as to the status of the
phrase "substitute product". The WTO phrasing uses "like product". Using the phrase
substitute product could potentially broaden what kinds of products may file for anti-
dumping. For example the imported product feed wheat is a substitute for the locally
produced feed corn, using the phrase substitute product could potentially allow feed corn
producers to initiate and anti-dumping investigation on feed wheat. Initially, party-list
Rep. Montemayor wanted to give the "fullest possible protection" by using the term
"substitute product" (House of Representatives B, 1999: 80) and immediately called for a
viva voce vote to amend the law in that direction. The vote actually achieved a majority
and the measure was about to be adopted, but the results were immediately appealed by
Rep. Salceda who convinced the representatives present of the need to maintain WTO
consistency and the decision to adopt the phrase "substitute product" was overturned in a
second viva voce (House of Representatives B, 1999: 84). Rep. Montemayor
nevertheless maintained the opinion that it is the duty of legislators to liberally interpret
international agreements for the sake of their constituents and to change their laws only if
other countries point out inconsistencies (House of Representatives B, 1999: 81-82). In
the same deliberation, Rep. Montemayor addressed the other Congressmen and asked if
any of them had been approached by representatives from other countries and
international organizations regarding inconsistent provisions of which nobody present
was aware of such an occurrence (House of Representatives B, 1999: 82).
That effectively concludes the deliberations of the bill for the 1999 anti-dumping
law in the House of Representatives which they then passed to the Senate for their
deliberation. There, the Senate consolidated the house version of the bill with their own

version in a special session with the congressmen of which no transcript exists.
The report of this special session revealed that the only major additions were a
provision that authorizes the TC to require any interested party to allow access to or
provide necessary information to enable the TC to conduct its investigation. And should
the party refuse access to the information, the TC may make its determinations on the
basis of available information. Another provision was added that required the TC to
inform all interested parties of the facts under consideration which form the basis of the
final decision, and that such a disclosure must take place in a sufficient time for the
parties to be able to defend their interests.30
Direction and Mechanisms of Convergence Present
Some general observation needs to be stated: That in the course of the

deliberations of both laws 1994 and 1999 in the senate, there was really no resistance to
the adoption of anti-dumping laws. There were certainly delays and some questioning as
to the value of anti-dumping (such as Rep. Apostol's objections to the 1999 Law) but
there were no concerted attempts to prevent it. The clash was mainly in the area of the
procedures where the main debates were whether to comply with the ADA or not to
comply in order to increase protection to domestic groups.
Several general points of inquiry also came out over the course of the discussion
of the deliberations of the 1994 and the 1999 act:
 What procedures need to be followed in an anti-dumping law?

 What is the place of the instrument in economic liberalization
(especially in relation to the WTO)?
 What are the roles of government institutions that handle anti-
dumping?
30
Conference Committee Report recommending that HBN-7612 in consolidation with SBN-763 be
approved as reconciled (August 25, 1999)

 What improvements necessitate the amendment of existing anti-
dumping laws?
These points of inquiry lets one see the mechanisms involved in the convergence
of anti-dumping legislation.
With regard to the first point, the issues raised regarding the procedural aspect of
the law ranged from the question of time limits, filing processes, amount of duties, kinds
of duties being applied, data gathering methods and the effectiveness of the legislation
(represented by number of petitions and affirmative findings). The pressure in this area
of questioning can comes from three sources: domestic pressure groups; pressure from
WTO and; lessons from other countries and the fear of being left behind. One
particularly interesting episode was the observation made by Sen. Maceda in the 1994
law that much of it was actually taken from US legislation. In terms of policy
convergence theory, this reveals that the Philippines made use of the anti-dumping
models of the US and the ADA.
Another observation with for the first point is that often, the different pressures
want to pull the law in two contradicting directions, and this is especially clear between
domestic pressure groups and pressure from the WTO. The domestic pressure groups as
seen here may be exemplified by the agricultural sector representatives who were
mentioned in the senate deliberations of the 1994 act; and representatives from the steel
industry and the FPI who were mentioned in the 1999 act. WTO pressure was always
present in these deliberations. In the 1994 deliberations, the WTO pressure was coming
from the fact that the legislators were trying to get the Philippines for membership, they
tried to make a law that was said to be "stronger" all the while knowing that it would
eventually have to be made more consistent to international legal obligations. In 1999, it
was these legal obligations which the legislators believed needed to be met that made
them adjust inconsistent procedures to the WTO. The lessons from other countries and
the fear of being left behind were evident in the 1994 deliberations when the one of the
sponsors revealed that he had access to US senate deliberations when they were also

trying to revise their anti-dumping law, but the fact that many of the procedures discussed
therein were not emulated in the 1994 law might go to show that the lawmakers may have
drawn negative lessons from their study of the US deliberations. A positive lesson may
be gleaned from the mention of the case of the US banning imports from Russia in the
1999 lower house deliberations, especially when one sponsor said that they are already
experienced in using safety nets (unlike the Philippines).
The point of what the relation of the anti-dumping instrument is in economic

liberalization especially in the context of the WTO led to much confusion with regards to
other types of contingent protection. Questions were asked in the deliberations that
wanted to clarify the scope of protection that may be afforded by anti-dumping laws.
Naturally there was confusion from the less informed who tried to ascribe a role to anti-
dumping laws that are better served under countervailing laws and competition policy.
Also, it came out a few times in the 1999 deliberations that anti-dumping may not
provide a sufficient deterrent to dumping and some clamor was made to give anti-
dumping law the ability to punish those found guilty of dumping. Making dumping a
criminal act is not possible, but the clamor for this can be seen in a provision that fines
and suspends importers found guilty of dumping. The Philippines is the only country in
this study that has such a provision.
The third point is what is the role of government institutions in anti-dumping was
a heated issue in the deliberations because there was always a change in the main
institution that handled anti-dumping in the Philippines each time a new anti-dumping
law was being deliberated. The original law, Section 301, had the DOF has the agency
that accepts anti-dumping petitions and makes the final decision. The 1994 Act gives the
same power to the DTI in addition to the DOF. The 1999 act removes the DOF from this
role and replaces it with the DA when the petition involves the agricultural sector. The
Tariff Commission and the Bureau of Customs also have a role in the investigation of
dumping. The TC in charge of determining whether injury or dumping have occurred
while the BOC is in charge of gathering information and later for collecting the dumping
duty. It was mentioned that the reason for the changes in institutions lies in the desire to

make anti-dumping investigations faster and more responsive as well as a desire to
comply with the ADA.
The final point of inquiry is what improvements need to be made in the anti-
dumping law that necessitates its replacement. This point came out in both the 1994 and
1999 deliberations. The main improvements that made the amendments necessary were
that there was a need to simplify procedures, shorten time needed to make a decision and
to further clarify certain procedures. The combined effect of these improvements is to
make the anti-dumping instrument more accessible to potential users.
Given these points of inquiry, what sort of mechanisms do we see at work? The
mechanism of international harmonization is very prominent which leads the legislature
to want to comply with the obligations under the WTO which results in its procedures
looking very similar to the other countries in this study. Domestic pressure and
regulatory competition are also present and are the main impetus for the adoption of some
procedures, institutional arrangements and the desire to improve the law (i.e. make it
more accessible to potential users). Transnational communication was also taking place
in the form of lesson drawing (both negative and positive), especially from the United
States.
One pattern that the Philippines confirmed in anti-dumping convergence is that

many countries would opt to come up with an anti-dumping law with some GATT
inconsistencies in order to take advantage of the fact that there is no definite time limit
for the country to make its law comply with GATT.
CHAPTER VIII
DATA ANALYSIS

The aim of this chapter is to discuss the state and direction of convergence in anti-
dumping laws and to discuss the mechanisms that influenced the convergence based on
the data that was presented in the previous chapters.
A. State of Convergence
Legal Bases
The author offered a common pattern for anti-dumping law adoption: that
countries start with a trade and customs code (legislation with a similar function) and
follow it up with a "functional" anti-dumping law (complete in the sense that the law
contains implementing provisions and detailed procedures in order to govern the conduct
of anti-dumping investigations) around the time of WTO ratification (1993 for Malaysia,
1994 for the Philippines, 1996 for Indonesia and Thailand). These laws were then
amended or replaced in the late 90s (1998 for Malaysia, 1999 for the Philippines,
Indonesia and Thailand). This pattern is consistent with all the countries in this study
with the exception of Vietnam which is to be expected since they have continued to rely
on traditional trade barriers until opening up recently. The dates these laws were ratified
coincides with the dates in which the countries became members of the GATT (for the
trade and customs code) and WTO (for the functional legislation). In the case of the
WTO ascension, the anti-dumping law was passed just a short time (1-2 years) before and
after a country becomes a member. The amendment comes
The laws became more similar with each other in the period between the
enactment of the first law and subsequent amendment. This is clearly seen in the
institutions of anti-dumping and the procedures being followed across countries.
Institutional Arrangement
The countries all adopted institutions with similar functions and with similar
relationships with one another. As noted in Chapter 5, the countries employ a decision

making agency (also known as the Anti-Dumping Authority) which is usually the
ministry of trade or one of its departments. Among its functions is to accept anti-
dumping petitions and to decide whether or not to impose a dumping duty based on the
investigation conducted by the investigating agency. The investigating agency is usually
also attached or subsidiary to the Anti-Dumping Authority and its function is to
determine whether dumping and injury exist and then to recommend to the Anti-Dumping
Authority to impose dumping duties. Auxiliary agencies assist the investigating agency
with the collection of information relevant to the case; the most active agency in all
instances is the customs department since it has access to data on the amount of trade
going on.
When anti-dumping laws change or get amended, the effect of these amendments
to the institutional arrangement is usually either: (1) an agency is given more
responsibilities or tasks are redistributed to other agencies (ex. Rearrangement of the
composition of Indonesia's KADI and the discussion in the Philippine congress about
giving the BOC a "greater role") and; (2) powers are transferred from one agency to
another (ex. Transfer of Anti-Dumping Authority from DOF to DTI in the Philippines
and MOF to MOC in Thailand). The rearrangement of institutions all seems to take place
in the interest of improving efficiency in the conduct of investigations such as reducing
the amount of time needed to conduct an investigation. Another goal is to ensure that
WTO standards are kept in the collection and treatment of evidence, conduct of tests,
determination of injury, etc. so that disputes with other countries can be avoided
(Aggarwal, 2007).
For example, in the past, the Finance Ministry being the Anti-Dumping Authority
instead of the Trade Ministry was more common, with the Philippines, Thailand and
Malaysia using the Finance Ministry at one point. Thailand and the Philippines shifted to
their respective Trade Ministries in 1991 and 1994 respectively. The reasons for this
shift are first because it is believed that it is more appropriate to give the responsibility of
anti-dumping to Trade Ministries because of its nature as a trade issue and therefore, it
can be handled with greater expertise as well as greater knowledge of international trade

laws. Of the five countries in this study, only Malaysia still employs its Ministry of
Finance to make final determinations, but this arrangement is not as different as it seems
since the Malaysian Ministry of International Trade and Industry (MITI) accepts the anti-
dumping petitions and supervises the investigation.
Thus in terms of the institutions that govern anti-dumping, one can observe Sigma
Convergence occurring among the countries. It is also possible to imagine that Delta
Convergence has occurred towards the EC's unitary system (as opposed to the US'
bifurcated system) which puts the responsibility of determining both dumping and injury
under one agency.
The direction of convergence in institutions seems to be towards making anti-

dumping easier for governments to use. They strove to strengthen the capacity of some
agencies by giving it more powers in the investigation and by clarifying the relationships
among the agencies (such as which procedures should be carried out independent of other
agencies) in order to make the process from filing of petitions to the final decision and
collection of duties happen more smoothly.
The mechanisms of convergence that may be observed in this case is a mix of

Regulatory Competition and Domestic Pressure. Regulatory Competition was observed
in the Philippines as the main reason for the shift in making DTI the anti-dumping
authority rather than the DOF. Domestic Pressure may have been the reason as to why
Indonesia's KADI was made more independent of MTI. On the other hand, the
researcher believes that International Harmonization does not have an important role
because the ADA does not actually contain any provisions on the kind of institutional
arrangement a country must possess, in fact, it just assumes the existence of institutions
that govern anti-dumping (Czako, Human & Miranda, 2003). It is difficult to observe
transnational communication in any of its forms for institutional arrangements. The
communications from the ADP committee do not normally challenge the institutions
governing anti-dumping. One communication was addressed to Indonesia regarding the
shift from the Appeals Institute to the Tax Dispute Settlement Board but it was merely to
clarify its judicial character and no changes were made following that.

Procedures
This study compared the countries according to: public interest provisions,
transparency and confidentiality, levy of duty, provisional and retroactive duties,
initiation of investigation, determination of injury and determination of normal value.
Of the above provisions, public interest, transparency and confidentiality, levy of

duty and retroactive and provisional duties are largely left to the discretion of the country.
Which makes convergence in this area can be the result of any of the mechanisms of
convergence. On the other hand, the initiation of investigation, determination of normal
values, and determination of injury are governed by some provisions in the ADA which
makes International Harmonization the leading cause of convergence in this area if
convergence is observed. The following is a summary of the findings in Chapter V
Public Interest Provision – Only Malaysia, Thailand and Vietnam contain "true"
public interest provisions. Even then, they differ in nuance. Vietnam and Malaysia make
public interest an optional consideration in deciding whether or not to stop an
investigation or a duty, while Thailand makes public interest a requirement in anti-
dumping proceedings. The Philippines does not have a public interest provision but it
does contain provision that discourage the misuse of the instrument by domestic
industries and by public officials. Indonesia does not have any such provision.
Transparency and Confidentiality – All countries maintain confidentiality of

information to varying degrees (such as in terms of the criteria in which it considers
information to be confidential, the kinds of people/groups that may be granted access to
information etc.). All countries publish the reasons for the imposition of anti-dumping
duties. Countries have converged in this area because of similarities in the way they treat
confidential information. Information is restricted to interested parties during the
investigation and in some cases, the government has criteria for saying whether one is an
interested party or not.
Levy of the Duty – All countries levy the anti-dumping duty prospectively. Only

Vietnam provides that duties be levied retroactively when a foreign producer requests for
it and even then it is only considered under certain circumstances.
Provisional and Retroactive duties – All countries apply both kinds of duty. The
preferred means of getting provisional duties is with a bond or some other security.
Retroactive duties follow the 90 day time period set by the ADA.
Initiation of Investigation – All laws require that the anti-dumping petition must
be submitted in written form but the laws diverge in the required contents of some of the
petition as some laws are highly detailed and whereas others (especially Indonesia) leave
this aspect vague. Anti-dumping investigations can occur ex officio.
Determination of Injury – All countries except Indonesia consider price

undercutting, decline in output, and reduction in market share as a manifestation of
injury. All countries except Indonesia consider the threat of injury as a factor that may
require the imposition of duties. Furthermore the clarity in which the countries' anti-
dumping laws establish the causal link between injury and dumping differs among
countries. All countries however require that this step must be demonstrable. The test
for the causal link usually involves attributing price suppression, retardation and
reduction in market share to the dumped product by examining the relationship of price,
volume of imports (and sometimes the volume produced in the home country) and
capacity of domestic markets to absorb the good.
Determination of Normal Value – Normal value is usually the price of the

imported good sold under normal circumstances in the country of origin. Sometimes this
can not be determined in which case; the normal value has to be determined either by
reconstruction based on the producers' costs and profits or by looking at the sales of the
product in comparable third party countries. The laws differ in the detail that they place
in the legislation and in the construction of the provision. One interesting construction is
the Philippines' paragraph (n), which says: "If the normal value of an article cannot be
determined, the provisions for choosing alternative normal value under Article VI of
GATT 1994 shall apply."

Based on the summary of procedures provided above, one can say that in the case
of procedures left at the discretion of governments (public interest, transparency and
confidentiality, levy of duty and retroactive and provisional duties), or the provisions
with more less detailed provisions on the ADA, the countries converged in all these
procedures except in the area of public interest. The direction of the convergence based
on the changes that the laws underwent seems to be in the direction that the law is easier
to apply. For example, Vermulst (1997) says that the reason for the prevalence of the
system of providing non-confidential versions of confidential information instead of
providing for a system of disclosure of confidential versions is because it is less
problematic since the investigation may not be jeopardized as a result of the leakage of
confidential information.
Likewise, One reason for the prevalence of prospective duties is that it is much
simpler to apply than retrospective duties, reporting of dumping margins for retrospective
duties may often come late thus causing many complications. Another reason for the
method's prevalence may be because it would make the application of duties based on the
threat of injury difficult since no injury occurs, the duty would have to be the "full" duty
based on the dumping margin.
All systems make use of preliminary and retroactive duties. Countries require
that the preliminary duty must be paid in advance be it in the form of cash or as a bond
(or some other security) for variable duties. The reason for this preference may be due to
its ease of use. All countries apply retroactive duties only if the dumped product was
dumped quickly and in high volumes in a short period of time and only after the final
determination has been made (with the exception of Thailand which would apply them as
soon as a preliminary determination is made). Convergence occurs in this procedure
largely because the laws are in compliance with the ADA when the agreement has
something to say about it. In the levy of retroactive duties this is the 90 day time limit
that the retroactive duty must not extent beyond. This is not surprising since all of these
are allowed under WTO rules and the countries here can be said to just be "maximizing"

their regulations with respect to their legal obligation. 31 It is also worth noting that the
detail differs among their laws, for example, the Philippines is the only country in this
study that codifies the AD requirement in Article 10 no. 8 that no retroactive duties may
be levied on product entered for consumption prior to the date of initiation.
Among the procedures governed by the ADA, one can also see convergence
towards the agreement. One obvious illustration of this is the Philippines which, in its
desire to achieve consistency with the agreement simply stated that it would follow
GATT provisions. Likewise, Sutham (2008) claims that Thai law has very similar
wording to the ADA (at least in English translation). The researcher has confirmed this
in the definition and determination of injury in which the English translations of the anti-
dumping laws seem almost identical to the construction of the ADA (see Chapter V).
The reasons for why the evolution of legislation followed similar patterns, may
have been the lack of experience on the part of the adopting country. Vermulst (1997)
notes that for countries who have just adopted the anti-dumping instrument, dealing with
the more technical aspects of the instrument will be difficult. The trend towards having
more detailed international rules makes it more difficult for developing countries, which
simply does not have the expertise and experience in anti-dumping investigations to abide
by these rules. Only as the developing countries become more and more experienced in
anti-dumping (either by initiating anti-dumping investigation or by having their industries
becoming the target of an anti-dumping investigation) do their laws end up containing
greater levels of detail and sophistication.
Given this discussion, it can be said that there is Sigma Convergence taking place
in the procedural aspect of anti-dumping law. Convergence has taken place
incrementally and this has been towards the direction of the ADA in the procedures in
31
To show that the laws do converge in this area toward the ADA, the change in Philippine anti-dumping
law is an interesting case. In the 1994 Anti-dumping act, before the Philippines ratified the WTO, the
provisional duties were very burdensome. The application of a provisional duty does not begin after a
preliminary determination, it begins after a prima facie case of dumping. The provisional duty also
consists of a provisionally estimated duty "plus the applicable regular duty based on the documentary
evidence submitted with the dumping protest". These duties come in addition to the withholding of
products that have already been entered in the Philippines. Naturally other countries questioned these
practice as will be discussed in the next chapter.

which it has an effect and towards ease of use/application in cases in which the ADA has
no effect or has a limited effect. This indicates that International Harmonization,
Transnational Communication, Regulatory Competition and Domestic pressures have
been at work.
With regard to the mechanism of Regulatory Competition, the study found that
countries amend their laws when they perceive that the old law contains some difficulties
or inefficiencies and in trying to correct these, countries learn from other countries
experiences and from the WTO. Alternatively, as the case of the Philippines will show,
countries may pass an anti-dumping law just before entering into the WTO which
according to its rules allows a country an indefinite time period to amend existing laws
that are inconsistent with the ADA. Thus, a country would deliberately pass a law that
has some ADA inconsistencies with the intention of revising the rules when the time is
right. The pattern is reinforced as a result of the dates that the countries joined the WTO
(all of them joined in January 1, 1995 with the exception of Vietnam which joined in
January 11, 2007). The amendments almost always end up making the country more
ADA consistent in the procedures in which it matters.
This begs the question of whether the GATT ADA was that compelling to begin
with. The threat of Dispute Settlement and the communications among WTO members
in the Committee on Anti-Dumping Practices which often consisted of other members
challenging the ADA consistency of another's laws ensured convergence toward the
ADA when the Agreement has something to say about it.
B. Philippine Convergence
The aim of Chapter VI on Philippine convergence was to show what international

pressures the Philippines has been exposed to and its effect on the policy objective,
policy instruments and policy settings. A study of the transcripts in that shows that the
Philippines has experienced the mechanisms of: International Harmonization;
Regulatory Competition; Domestic Pressures.

The transcripts of the lower house and senate deliberations, it is clear that anti-
dumping became a concern because of trade liberalization as a result of WTO accession
(WTO ratification was being rushed in the senate at the same time as the anti-dumping
law. The 1994 deliberations were more concerned with "the place of anti-dumping in
Philippine trade policy." The objective was to have an anti-dumping policy that provided
greater protection for domestic industries than the WTO agreement would have otherwise
allowed. Such as criminalization of dumping or the absence of sunset reviews and
undertakings.
The objective of the anti-dumping law as it was being amended in 1999 stayed the
same—to protect domestic producers but this time the legislators tried to maximize
protection in light of international agreements. The transcripts revealed in the provision
that required the support of up to 50% of total domestic production to support an anti-
dumping law, each time this is questioned, the response is always that the ADA must be
kept. They also tried to learn from the Philippine's own experience in anti-dumping as
well as other countries' experiences. This was most clearly seen when one interpellator
even challenged the relevance of anti-dumping laws in light of the experience of America
unilaterally not barring the entry of Russian steel.
The experience was also necessary when the government tried to change the anti-
dumping authority from the DOF to the DTI and the DA. The DTI was chosen because it
is generally more appropriate as an anti-dumping authority than the DOF. The DA is
there to cater to the anti-dumping needs of farmers which also appears appropriate since
they have more experience dealing with agrarian matters and can more easily comply
with the 50% domestic support requirement of the ADA.
There were also many instances during the deliberations in congress have shown
that the legislators may even be working more closely with domestic producers in
formulating the policy. Two groups were mentioned in the deliberations, representatives
from the Philippine Steel industry which at the time was pursuing an anti-dumping case
against Russian steel. The other group was the Federation of Philippine Importers. The
first group, the steel industry, is actually an expected player according to literature. For

example, Zanardi (2008) says that one of the determinants of anti-dumping law adoption
is the presence of a steel industry.32 It is therefore not surprising that the steel industry
continue to play an important role in amending anti-dumping laws.
C. Dynamics of Convergence
Convergence does not seem as clear cut as in the above discussion. The direction
of convergence is toward ADA regulations and towards ease of use. This however, only
covers anti-dumping from written legislation itself and not practice. This is not an issue
in this thesis since this study is only limited to studying written laws; however the
divergence is worth mentioning. What this divergence says is that states are really trying
to experiment with the laws in order to see what they can or can not get away with.
Getting states with written laws that are inconsistent with international agreements would
depend on the enforcement mechanisms that the international organization has in place
and in the strength and political influence that its members have. In the case of the WTO,
it has the Committee on Anti-Dumping Practices which serves as a forum in which
governments can send questions and clarifications to one another in questions of anti-
dumping law. Countries are also required to send semi-annual reports to this body on the
status of their anti-dumping measures and the anti-dumping legislation they have in
place. Therefore, the ADP also serves as a database of anti-dumping information. The
other body that ensures convergence with the ADA is the Dispute Settlement Body. In
this body, countries may move to have inconsistent laws removed and contentious
practices stopped. In this study, two important cases were mentioned. One involved the
repealing of the US Anti-Dumping Act of 1916 which contained provisions that were
inconsistent the GATT/WTO Treaty. The other case is currently ongoing, the case of the
practice of zeroing which supposedly violates Article 2.4 of the ADA. Both of these
cases were aimed at the United States but it is also possible for other members to initiate
a dispute settlement proceeding on any other member with inconsistent laws/practices. In
spite of these enforcement mechanisms, governments continue to experiment with their
laws in order for officials to be able to please their constituencies who would almost
32
The steel industry did not only play a role in the Philippines alone, its influence was also seen in
Indonesia, Malaysia and Thailand in this study.

always demand for greater protection under national anti-dumping laws. Therefore as
countries continue to experiment and as international jurisprudence on anti-dumping
continues to grow, there is not telling what the direction of national anti-dumping laws
and practices will be in the future.
The mechanisms of convergence are not as clear cut either. In the theory of
policy convergence, the mechanism seems to stand alone. International harmonization
can operate on its own as could regulatory competition and the like. What the researcher
found out is that these mechanisms exist side by side and influence the evolution of
policies in varying degrees. More importantly, some mechanisms facilitate the action of
another. The best example for this in this study is how transnational communication and
international political pressure facilitate the mechanism of international harmonization,
specifically compliance with the ADA. Another observation is that different mechanisms
can pull policies in two different directions of convergence. This is apparent in the case
of international harmonization and regulatory competition together with domestic
pressure. International harmonization pulls anti-dumping policies towards more
internationally acceptable and transparent procedures and international standards of anti-
dumping investigation. Regulatory competition on the other hand, seems to pull toward a
more discretionary regime wherein authorities can more easily come up with a positive
determination in an investigation and where it is easier for a domestic industry to apply
for anti-dumping protection. This may result in anti-dumping laws that seem outwardly
consistent with international legislation but is different in practice. The researcher would
like to offer the case of Indonesia with its "skeletal" anti-dumping law providing much
room for interpretation and an empowered and independent KADI as a case in point.
To sum up, policy convergence as observed in this case, is more nuanced than
what the empirical studies usually portray with its sigma, delta, gamma and beta
convergence and its stand-alone, clear cut mechanisms of convergence.
CHAPTER IX

CONCLUSION AND RECOMMENDATIONS
A. Conclusion
As noted in the analysis the laws governing anti-dumping have become more
similar over time in the sense that they have adopted similar institutional arrangements
and procedures. The countries examined in this study have been converging their
procedures towards that of GATT Anti-Dumping Agreement of 1994. This means that
the countries tend to apply the same standards and use the same definitions as the
agreement. Aside from this, many of the provisions have been tending towards those that
are easy to use or apply, which can point one to the direction that convergence may come
as a result of regulatory competition, transnational communication or through
independent problem solving.
The areas in which the countries have converged towards the ADA are in
definition and determination of injury, determination of normal values and initiation of an
anti-dumping investigation.
Some procedures such as in the treatment of evidence and confidential

information, application of final duties and provisional and retroactive duties,
convergence seems to go in the direction of whatever is easier to use. This is especially
evident in cases when the system changed from an older piece of legislation which was
more cumbersome to one which was easier to apply. Furthermore, the trend of the
changes in the legal bases of anti-dumping in the cases of Malaysia, Philippines and
Thailand has been towards increased detail and precision in their anti-dumping laws. The
change in the Philippines from the 1994 to the 1999 anti-dumping laws seems to indicate
towards greater simplification of procedures (in application) as well as compliance with
the ADA.
In this study therefore, there appears to be Sigma Convergence where the

differences in the countries' laws decreased over time. There is also convergence toward
an exemplary model, the ADA, in provisions of general application such as in

determining injury, normal values, etc. but since this is more of a manifestation of
international harmonization, Delta Convergence cannot really be said to have occurred.
On provisions not governed by ADA or those not provisions that are not essential to the
making of a positive determination, the direction of convergence appears to be toward the
ease of use of a procedure or instrument.
One aspect in which the ADA is silent in is in the make-up of competent

authorities in anti-dumping. In this study, countries have largely converged in having a
unitary system with the main decision-making authority being under the Minister of
Trade and Industry (or any equivalent body directly under the executive branch). In
charge of the investigation is a dedicated committee on anti-dumping composed of
members from various ministries and sectors. The customs agency provides support by
providing information. Judicial courts generally handle appeals and reviews; specifically
this would refer to a court which specializes in trade issues or finance issues. This is the
basic set-up of the authorities involved in anti-dumping, however the reasons for
convergence in this area do not indicate any international mechanisms at work. It is may
be because of domestic arrangements that it ended up this way. In the case of the
Philippines, it seems that it was a process of trial and error that left us with the current
institutional arrangement.
In this study therefore, there appears to be Sigma Convergence where the

differences in the countries' laws decreased over time. There is also convergence toward
an exemplary model, the ADA, in provisions of general application such as in
determining injury, normal values, etc. On provisions not governed by ADA or those not
provisions that are not essential to the making of a positive determination, the direction of
convergence appears to be toward the ease of use of a procedure or instrument.
With regard to the mechanisms of convergence, the study revealed that the ADA
carries a lot of force and persuasive power for the states to conform to. This may have
roots in the retaliatory nature of anti-dumping. Alternatively, this points to the
communicative power of the WTO, as the author has shown in the process of questions
and clarifications under the agreement. Furthermore, the threat of undergoing a dispute

settlement under the agreement seems sufficient for many countries to want to reform.
However, with the United States and other economically powerful countries
concentrating more on regional arrangements than the multilateral arrangement under the
WTO, one can observe that the clamor for compliance with the ADA likewise got
reduced. Evidence for this is Indonesia, whose laws remain vague or with Thailand
which has not notified the WTO of new legislation even though it is said to have done so.
Therefore, the convergence of anti-dumping legislation is actually a very

complicated process. For example, policy learning can take place within the context of
regulatory competition. The simplified empirical model does not do justice to the
theory. It is also not clear whether the adoption of an EC system for the states in
question was coincidental (i.e. independent problem solving) or deliberate.
Given the overwhelming role of WTO compliance in the increase in similarity of

anti-dumping laws, one can say that international harmonization and transnational
communication (taking place within the context of the WTO) is the primary reason for
convergence. The reason why the pressure for harmonization was strong may be
attributed to the fact that, at least during the Uruguay Round, the ADA can be seen as a
tool that can be used for the advantage of developing countries, especially since some of
the procedures embodied in that law were lobbied for by developing countries
themselves. The developing countries knew that anti-dumping is a double edged sword
—while they would be entitled to use the instrument, so would the traditional users of
anti-dumping, hence certain procedures such as standards for evidence, reviews,
definitions of like products, domestic industries, etc. were included in the agreement for
the benefit of the developing country since they know that developed countries may
retaliate against them hence wanted them to be subjected to the same "strict"
requirements. The point can thus be made that the kind of international harmonization
that went on was a "negotiated transfer", meaning that the kinds of provisions to be
adopted was negotiated among the members.
Nevertheless, modalities exist whenever the ADA is silent on a practice. There is

evidence to believe that experimentation is taking place in anti-dumping law and practice

with the main objective being that states try to experiment to see what it is they can "get
away with" in anti-dumping. Thus a country may end up with an anti-dumping law that
at the level of the written text may seem consistent with the ADA but in practice may
contain many contentious procedures. Not only that, but one cannot expect the
international regime of anti-dumping to stay the same indefinitely, the ADA will also
change and adapt as countries negotiate for more concessions or stability and as
jurisprudence in anti-dumping law grows. Thus, convergence is not as clear cut a
phenomenon as simply sigma convergence toward the ADA.
B. Recommendations
A study of convergence in anti-dumping practice will also be useful. Since this

study only concentrated on codified laws, many laws are silent on certain practices, the
reader will not be informed of practices that take place outside of what is written, i.e.
where the law is silent, does practice still converge across countries? This study has
demonstrated several instances of this, particularly Indonesia's law which seems
deliberately vague, leaving most of the practices under the responsibility of the anti-
dumping committee which comes up with its own rules and regulations. Furthermore,
the literature also suggests that developing countries occasionally apply their anti-
dumping law in a manner which is inconsistent with ADA even when their laws seem
consistent. Thus, one recommendation for future research that the author would like to
give is to study the convergence of actual practice of anti-dumping law, i.e. whether
practice actually follows the legislation that was created for it.
Another interesting approach for the comparison of anti-dumping law is by

examining which aspects of the investigation the law deliberately stays silent in or is
vague. For example, in provisions that determine whether an entity is considered an
interested party or not or in de minimis dumping.
Another recommendation is for future research is to investigate the specific

convergence mechanisms that went on in the individual ASEAN countries. The author
tried to do this for the Philippines specifically, but this was only to provide an idea for

what was going on across the region. A more in depth comparative study of the policy
making of individual countries would be very interesting and informative. Such cross
country studies should be done not only in anti-dumping but in other policies and
instruments.
The author also recommends trying to study the convergence of anti-dumping

policy between the "new users" of anti-dumping and the traditional users such as the US
and EU. This study mentioned that anti-dumping laws in ASEAN may be converging
towards one of these models but it has never been confirmed in this study. Such a study
would have to focus on Delta Convergence.
To contribute to theory, the author recommends that more qualitative research be

done on policy convergence so that the application of directions and mechanisms, and the
relationships among these mechanisms will be better informed and to enrich the literature
on policy convergence.


The Convergence of National Anti-Dumping Legislation Among ASEAN Countries

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THE CONVERGENCE OF NATIONAL ANTI-DUMPING LEGISLATION

AMONG ASEAN COUNTRIES

A. Background of the Study

Another effect of increased economic integration is the "convergence" of policies

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 1

A country's anti-dumping regime is also expected to come under international

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 2

B. Statement of the Problem

1. What is the current state of convergence in the anti-dumping regimes laws of

Policy Convergence – development of similar or even identical policies across countries

International Harmonization – this mechanism leads to convergence when the countries

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 3

Regulatory Competition – Regulatory competition causes convergence when countries

Transnational Communication – Transnational Communication refers to the tendency of

Anti-dumping – The 1994 GATT Agreement on Anti-Dumping defines dumping as the

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 4

1. To describe the current state of convergence in the anti-dumping regimes of the

2. To determine the international causal mechanisms that led to the convergence in

E. Significance of the Study

This research is also be helpful in the field of convergence studies as Daniel

Lastly, this research is also a welcome addition to literature on anti-dumping

F. Scope and Limitations

This study is limited to describing the state of convergence in anti-dumping

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 5

According to Holzinger and Knill (2005), studies on policy convergence normally

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 6

REVIEW OF RELATED LITERATURE

Empirical Studies on Convergence

Daniel Drezner (2001) attributes policy convergence to economic integration and

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 7

In environmental protection, Drezner identified that the literature covers a wide

In the end, Drezner concludes that globalization as a phenomenon is not

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 8

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 9

International harmonization in relation to this thesis is a kind of process leading to

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 10

In application, Simmons' framework (through international institutions)

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 11

Domestic Political Conditions Leading to Policy Convergence

Victoria Murillo (2002) contributed to the empirical body of knowledge in her

As applied in this study, convergence the similarity in the choice of regulatory

In Chile, electricity and telecommunications were privatized. The Pinochet

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 12

In Mexico, the government only privatized telecommunications. The government

In Argentina, there was a moderate level of economic nationalism which explains

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 13

1. Convergence hypothesis. Defined as when laws and legal institutions

2. Divergence hypothesis. In this case, each economy follows its own

3. Differentiation hypothesis. Different parts of an economy's legal system

This study made use of a historical descriptive methodology. The authors

The evidence discovered by the authors seemed to support the convergence

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 14

Role of Non-State Actors in Policy Convergence

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 15

Basically, what is significant in this study is that it confirms that epistemic

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 16

Maher Dabbah's article (2003) looked at the internationalization of competition

1. Bilateral cooperation – this takes the form of formal agreements between

2. Harmonization and convergence – The idea that domestic competition

The Convergence of National Anti-Dumping Legislation Among ASEAN Countries 17

4. International system of competition law – This involves establishing an

Of course, in the internationalization of competition policy, one could not neglect

Comparative Studies of Anti-Dumping Law and Use