Constructivism, Embedded Liberalism and Anti-Dumping - Canadian Public Interest Inquiry as Case Study of Embedded Liberalism

By Aouri, Wissam | Canada-United States Law Journal, Annual 2017 | Go to article overview

Constructivism, Embedded Liberalism and Anti-Dumping - Canadian Public Interest Inquiry as Case Study of Embedded Liberalism


Aouri, Wissam, Canada-United States Law Journal


ABSTRACT: The majority of proposals for international anti-dumping reform focus almost entirely on the relevant economic factors--consumer welfare losses and gains. Therefore, almost all proposals come to the exact same conclusion; in light of the enormous welfare losses suffered by domestic consumers, international anti-dumping law should be repealed in its entirety, or at least replaced by some form of international competition law. However, this analysis views the issue of anti-dumping law through the constructivist lens, and more specifically, the embedded liberalism view of international trade law. From this perspective, economics alone does not grasp the constitutive realities at play in anti-dumping law; domestic perspectives of legitimacy and fairness shape the contours of international anti-dumping law and these constitutive norms espouse a view that protectionism, in a variety of different shapes and forms, is as much a part of international trade law as the traditional laissez-faire liberalist approach. This article concludes that public interest inquiries, which form part of a small number of countries' anti-dumping laws, embrace the constitutive realities at play in antidumping law and provide an opportunity for development of legitimate international antidumping reform. This article examines the Canadian approach to public interest inquiry in anti-dumping, including recent developments. This article concludes that the current Canadian experience demonstrates that embracing a public interest inquiry as part of anti-dumping reform may provide true hope for future development based on an embedded liberalism view of international trade relations.

TABLE OF CONTENTS

I. Introduction
   A. The Economics of Anti-dumping
   B. Specific Issues Surrounding International/Domestic
   Anti-dumping Law
   C. The Language of 'Unfairness'
II. Constructivism and Embedded Liberalism
   A. Constructivism
   B. Embedded Liberalism
III. The Constructivist Perspective: Anti-dumping,
Embedded Liberalism, and the public Interest
IV. Canadian Anti-dumping Law
   A. The Canadian Perspective: Political-Economic Statistics
   Regarding Anti-dumping and 'Protectionism'
   B. The Application of s. 45--'Public Interest'
   C. The Constitutive Dimension of Canadian Anti-dumping Practice
V. Embedded Liberalism and Possibilities for Reform
   A. Canada and the International Forum
   B. Canada and the Domestic Forum
VI. Conclusions and Possibilities for Future research

I. INTRODUCTION

A. The Economics of Anti-dumping

The issue of anti-dumping has become one of the most prevalent research topics for international economics and legal scholars today. This should not be surprising given the ubiquitous nature that this trade remedy has developed. Many articles and research papers detail the growing concerns over the pervasive use of anti-dumping across the globe, by developed and developing countries alike. (1) The majority of criticisms are directed towards the poor economic foundation of anti-dumping; while often times referred to as a form of 'international competition law', anti-dumping bears little legal or economic resemblance to domestic competition policies. (2) Competition law focuses on 'predatory pricing', the selling of goods below cost by a firm attempting to monopolize a market. However, selling below cost is a common occurrence in market economies, and cannot be considered predatory without the requisite intent to unduly lessen competition. Indeed, economists have paid scant attention to predatory pricing given the numerous other more effective and efficient methods of monopolizing markets. (3)

However, anti-dumping treats all goods imported at a price lower than the common selling price in the exporting country as being 'dumped', (4) and if 'injury' (5) to the importing market is proven, the margin between the two prices is accommodated for by an imposed dumping duty. (6) In many instances, it is consumers and down-stream users who bear the burden of welfare losses by paying higher prices for the goods in question. …

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