Anti-Dumping Protocols from the Basel Convention to the WTO - Essay Example

Liabilities of Excess Anti-Dumping Protocols from the Basel Convention to the WTO [Pick the Since the Summary of the Final Act of the Uruguay Round 1986 to 1994, Agreement on Implementation of GATT Article VI (Anti-dumping), nowhere perhaps, have economic analysts been able to point to the ineffectiveness of legislative policy pertaining to international trade than in the area of anti-dumping regulations. According to the World Trade Organization (WTO), ‘if a company exports a product at a price lower than the price it normally charges on its own home market, it is said to be ‘dumping’ the product.’ According to WTO protocol, regulatory measures are the provenance of national and international jurisdictional enforcement, and not of obligation to the Organization. The position of the WTO is rather, to provide information and dissemination of case studies toward affirmation of private trade relationships, and their voluntary response to ethical practices and law abiding transactions. To this end, the ratification of various treaties since the Uruguay Accord have been subject to furtherance of those legislative interests, and amendment to existing signatory protocol with some volitional agreement to liability and oversight by member states. The perspective of the WTO is predictably one of competitive market assessment. The mere query to into the fairness of anti-dumping is addressed through the stipulations of ratified legislative policy, and in particular the articulation of the General Agreement on Tariffs and Trade (GATT). The foregoing essay examines the changes in the GATT’s articles on anti-dumping, and the aggregated response by national markets in regard to those constraints. In interest of furthering the discussion into the sphere of after-market trade of hazardous waste products, the discussion also contributes to the otherwise standard consideration of the Uniform Commercial Code (UCC) as ‘goods’ are defined within international trade protocol. In 2009, the WTO Secretariat reported a marked 17% increase from 2007 in the number of anti-dumping investigations between July, 1 and December 31, 2008. According to the WTO, the Members whom reported the highest number of new investigations during the period, were India, reporting 42, followed by Brazil, reporting 16, China (11), Turkey (10), Argentina and the European Communities (9 each), Indonesia (6), Ukraine (4), Pakistan and the United States (3), Australia and Colombia (2 each), and Canada, Korea and Mexico (1 each). China was the most frequent subject of the new investigations. The most frequent products in the investigations were from the ‘base metals sector (43 initiations), the chemicals sector (22 initiations), textiles sector (19 initiations) and plastic and rubber sector (14 initiations)’ (WTO 2010). Chart 1 ANTI-DUMPING NUMBER OF INVESTIGATIONS INITIATED 1995 — 2008 Application of new national legislation to existing international anti-dumping measures increased by 45% in the last two quarters of 2008, with 81 new rules reported by eleven member states. The new rule applications are resultant of investigative assessments initiated in 2007. The annual rule advancement totaled 138 ratifications of anti-dumping measures in 2008, an increase from 197 in 2007 and 137 in 2006. Chart 2 ANTI-DUMPING NUMBER OF FINAL MEASURES 1995 — 2008 Comparatively speaking, national rule applications in 2008 were led by the United States in a reported 21 new measures during the last two quarters. The response is consistent in most of the other countries that ranked high in anti-dumping cases, with increases in rule applications in the other countries are in most cases correlated to the number of investigations. An exemplary case of close attention to anti-dumping protocols is found in South Africa’s legislative use of the WTO ADA (Anti-Dumping Acts) model to ‘ensure that it complies’ with its obligations. The history of South Africa’s process of rule development reveals that adequate anti-dumping measures can be fostered through the applications recommended within world trading system protocol. The iterative nature of member participation enables nations like South Africa that seek to improve their response to anti-dumping through regulatory mitigation, and can be achieved through a similar process of ADA interface with other national or regional models, as South Africa has through incorporation of rule stipulations from Australia, EU, New Zealand and the United States. The newer legislation adheres to the advancement of the Uruguay protocol, as distinguished in the DOHA Declaration on Anti-Dumping [GATT Article VI, Section 7] which outlines rules of investigation according to: 1) repeated investigations; 2) developing countries’ exports’; 3) time of determination of dumped volume; and annual reviews. What is perhaps most interesting is consideration of how the GATT measures on anti-dumping might be interpreted in preemptive cases on trade in product waste, and especially in regard to compensatory liability post investigation of those cases in nations that rank high in number of reported anti-dumping investigations, and/or offenses on record. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was negotiated under the United Nations Environment Program (UNEP) in 1988. Since the Convention was ratified in 1992, one hundred seventy two nations have become signatory to the agreement. The status of ratification by individual countries has been much slower. The list of signatories and ratifications of the Basel Protocol on Liability and Compensation (Article 29) as of March 2009 was thirteen (13) signatories – of which the United States is not party. Subsequent to the original agreement, the introduction of the financial liability protocol on December 10, 1999 stipulates that all parties signatory to the amendment, “or each State or regional economic integration organization which ratifies, accepts, approves or formally confirms the Protocol or accedes thereto after the date of the deposit of the twentieth instrument of ratification, acceptance, approval, formal confirmation or accession, it shall enter into force on the ninetieth day after the date of deposit by such State or regional economic integration organization of its instrument of ratification, acceptance, approval, formal confirmation or accession” (Art. 29.2). Statute related to criminal misconduct in regard to transportation of hazardous materials under Article 4 of the convention provides insight into unforeseen violations that may lead to litigation. Those projected cases resemble rules pertaining to toxic tort damage suits in the highest reporter of anti-dumping investigations, the United States. Subsections of Article 4.h outline agreement of signatory nations to co-operate in activities with other Parties and interested organizations, directly and through the Secretariat. Those obligations include the dissemination of information on the transboundary movement of hazardous wastes and other wastes in order to improve management of such wastes and to achieve the prevention of illegal traffic. As a party to the Convention, the United States is bound to those rules, yet rejects liability in future legal actions related to those trade activities. Rationale for the decision to abstain from such an international treaty is likely resultant of U.S. jurisdictional determinants rather than a mere rejection of environmental justice. Regardless of international pre-emption assumed under the Convention, fiscal liability in toxic torts will ultimately fall under federal statute in the United States. The U.S. often rejects agreement to obligation to commercial parties as liability may include ―joint and several liability of the State in negligence claims under U.S. Federal law. The presumption may otherwise include the United States as party to the claim if signatory to the amendment, and criminal conduct on behalf of a private party would then have the potential to obstruct justice in a liability claim that included the state, as apportionment may be considered accordingly. As the agreement also relates to used goods, substantiation of warranty liability (i.e., typical criteria in trade related tortfeasor actions) is null. Pollution control standards pertaining to such goods – especially in the case where they are known to be hazardous (i.e. computer technologies)—should be subject to regulatory statute of the recipient nation, and under related regional and international laws, and not determined by offeror. According to the Convention, it is assumed by the United States that the shipping party must adhere to international standards of waste compliance under international law. Finally, the Common Law system in United States promotes the use of state courts in due process. States’ adherence to particular federal statute may slightly vary. In response to most charges, regardless of plaintiff’s location, defendants accused in an international criminal case would likely be reviewed at the federal level, and then reallocated to the state court where they are located for preliminary trial and later reconsidered at the federal level under appeal. Trial of complaints that include both civil and criminal tortfeasor actions that include multiple parties may be subject to variances in appeal processes and with distinct outcomes dependent upon the justice(s) decision. As we turn to similar inquiry in the nation of China, the highest ranking offender in the investigation of anti-dumping complaints, we face a new challenge that a review of the United States or other capital market nation with democratic political and legal structures cannot provide. The conclusive summary to this analysis then is furtherance of the topic on implications of China’s potential to leverage a similar response to anti-dumping activities, and attendant dissemination of this process from a command economy perspective. Works Cited Agreement on Implementation of Article VI (Anti-dumping). Summary of the Final Act of the Uruguay Round 1986 to 1994. WTO. Available at: http://www.wto.org/english/docs_e/legal_e/ursum_e.htm#fAgreement Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1988. Basel Convention. Available at: http://www.basel.int/ DOHA Declaration on Anti-dumping GATT Article VI, Section 7. WTO. Available at: http://www.wto.org/english/tratop_e/dda_e/implem_explained_e.htm#antidumping WTO Secretariat reports increase in new anti-dumping investigations. WTO. PRESS/556, 7 May 2009. Available at: http://www.wto.org/english/news_e/pres09_e/pr556_e.htm Read More