A Right Unexercised Is a Right Lost? Abolishing Antidumping in Regional Trade Agreements

Article excerpt

TABLE OF CONTENTS

I.   INTRODUCTION
II.  THE LAW GOVERNING REGIONAL TRADE AGREEMENTS AND
     TRADE REMEDY PROVISIONS
     A. Regional Trade Agreements
     B. Trade Remedy Provisions in RTAs
     C. Trade Remedy Configurations in RTAs
     D. Antidumping and Antitrust: Common Enemies, Divergent
        Methods
III. REGIONAL TRADE AGREEMENTS IN WHICH ANTIDUMPING IS
     PROHIBITED
     A. Australia-New Zealand Closer Economic Relations Trade
        Agreement (1983)
     B. Canada-Chile Free Trade Agreement (1997)
     C. Agreements of the European Free Trade Association
        1. EFFA-Singapore Free Trade Agreement (2003)

        2. EFTA-Chile Free Trade Agreement (2004)
     D. The Closer Economic Partnership Arrangements Between
        China and Hong Kong and China and Macau (2004)
IV.  ARGUMENT
     A. Some Preliminary Observations
     B. Explaining the Prohibition of Antidumping
        1. The Arbitrage Theory
        2. The "Attrition" Theory
        3. The "Broader Push for Integration" Theory
     C. Explaining the Disuse of Competition Law in the Wake of
        the Prohibition of Antidumping
        1. Competition Law May Not Be Well-Suited to
           Tackle Dumping
        2. Uncharted Territory for Competition Authorities.
        3. Antidumping and Competition Are Unrelated
     D. Antidumping is a Dead Letter and May Thus Be Replaced
        by Competition Law, "a Weaker Form of Control"
        1. Economic and Legal Reasons for the Redundancy
           of Antidumping
        2. ANZCERTA and the CEPAs: Extraordinary
           Agreements
        3. Competition Law: a "Backstop" Against the
           Possibility of Dumping
     E. Implications for Future RTAs
V.   CONCLUSION

I. INTRODUCTION

Regional trade agreements (RTA) have proliferated in recent years. (1) Article XXW of the General Agreement on Tariffs and Trade (GATT) in large part regulates these agreements by requiring that "duties and other restrictive regulations of commerce" be eliminated on "substantially all the trade between constituent territories" to RTAs, at least with respect to trade originating in such territories. (2) However, parties to RTAs face a dilemma parallel to that facing members of the World Trade Organization (WTO). As the parties strive to fulfill the objectives of RTAs under Article XXIV, namely, "to facilitate trade between the constituent territories and not to raise barriers," (3) they often feel file need to resort to the use of trade remedies to combat perceived economic threats engendered by their trade posture. (4)

Indeed, given the objective of RTAs, one might expect such agreements to prohibit the use of contingent protection--antidumping and countervailing duties and safeguards--against other parties within the resulting free trade area. As noted in one study, "[s]ince RTAs have the objective of dismantling all barriers to intra-regional trade, one natural expectation is that RTA members will abolish the use of trade remedies against intra-bloc trade." (5) However, this has not occurred in practice. RTAs include a bevy of configurations governing the use of trade remedies within free trade areas. (6) Some agreements flat-out prohibit the use of a particular remedy, for example, antidumping. (7) Other RTAs allow the use of a certain remedy in a proscribed manner, (8) and some agreements allow the use of remedies without any guidelines. (9) Furthermore, many RTAs do not demonstrate consistency among the different trade remedy provisions, and in some cases one remedy is prohibited, another is allowed but regulated, and a third is totally un regulated. (10)

From this morass has emerged one especially interesting manifestation of RTAs: those in which antidumping is completely prohibited. In particular, this feature is found in agreements between Australia and New Zealand, Canada and Chile, the People's Republic of China (China) and Hong Kong, China and Macau, the European Free Trade Association (EFTA) and Chile, and EFTA and Singapore. …