1 Cf. Viner, J., Dumping: A Problem in International Trade (Chicago, University of Chicago, 1923)Google Scholar (Reprints of Economic Classics, New York, Kelley, 1966); Deardorff, A.V., “Economic Perspectives on Antidumping Law”, in Jackson, J.H. and Vermulst, E.A., Antidumping Law and Practice: A Comparative Study (Ann Arbor, University of Michigan, 1989) 23–39 Google Scholar; Kulms, R., “Competition, Trade Policy and Competition Policy in the EEC: The Example of Antidumping”, (1990) 27 C.M.L. Rev. 285–313 Google Scholar, reprinted in Bierwagen, R.M., GATT Article VI and the Protectionist Bias in Anti-dumping Laws, (Deventer, Kluwer, 1990)Google Scholar; Boltuck, R. and Litan, R.E., eds., Down in the Dumps: Administration of the Unfair Trade Laws, (Washington, D.C., The Brookings Institution, 1991)Google Scholar; Finger, J.M., ed., Antidumping: How It Works and Who Gets Hurt, (Ann Arbor, University of Michigan, 1993)CrossRefGoogle Scholar; Hutton, S. and Trebilcock, M.J., “An Empirical Study of the Application of Canadian Antidumping Laws: A Search for Normative Rationales”, (1990) 24 Journal of World Trade Law 123 Google Scholar; Trebilcock, M.J. and Howse, R., The Regulation of International Trade, (London, Routledge, 1995) 112–124 Google Scholar; Peters, E.-M., Antidumping-Politik, (Baden-Baden, Nomos, 1996).Google Scholar

2 For an analysis of the injury caused to the rule of law by such administrated competition cf. Mestmaecker, E.-J., “Zwischen freiem und verwaltetem Wettbewerb — Moeglichkeiten und Grenzen der Wettbewerbspolitik”, in Mestmaecker, E.-J., Recht in der offenen Gesellschaft, (Baden-Baden, Nomos, 1993) 667–672.Google Scholar

3 Cf. Mestmaecker, E.-J., “Can There be a European Law?”, (1994) 2 European Review 1, at 11.CrossRefGoogle Scholar

4 For arguments in favour cf. Mengozzi, P., “Les droits des citoyens de l'Union européenne et l'applicabilité directe des accords de Marrakech”, (1994) 4 Revue du Marché Unique européen 165 Google Scholar; the problems have been highlighted by Hilf, M., “The Role of National Courts in International Trade Relations”, (1997) 18 Mich. J. Int'l L. 321.Google Scholar

5 Art. XVI(4) of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, in The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts, (Geneva, The GATT Secretariat, 1994).Google Scholar

6 Ibid., at 168–196.

7 Ministry of Trade and Industry Document no. P/121 (29.3.1995).

8 Ministry of Trade and International Trade Administration, Department of International Issues, Work meeting for follow-up on the application of the Uruguay Round Agreements — Summary, 10 pp. (minutes taken by Y. Schwarzbard and N. Bar-Gal) (unpublished, date not specified).

9 A comprehensive analysis of this subject is given by Clements, K.W. and Sjaastad, L.A., How Protection Taxes Exporters, (London, Trade Policy Research Centre, 1984).Google Scholar

10 Qureshi, A.H., The World Trade Organization, (Manchester, Manchester University, 1996) 142 Google Scholar; R. Boltuck, J.F. Francois, S. Kaplan, “The Economics of the Administration of the US Unfair Trade Laws”, in Boltuck and Litan, supra n. 1, at 152; R.E. Baldwin and M.O. Moore, “Political Aspects of the Administration of the Trade Remedy Laws”, in Boltuck and Litan, supra n. 1, at 253; Finger, supra n. 1, at 39–40; Kulms, supra n. 1.

11 Stewart, T.P., Markel, S.G. and Kerwin, M.T., “Antidumping”, in Stewart, T.P., ed., The GATT Uruguay Round: A Negotiating History (1986–1992), vol. II, (Deventer, Kluwer, 1993) 1383 Google Scholar; cf. also A. Eymann and L. Schuknecht, “Antidumping Enforcement in the EC”, in Finger, supra n. 1, at 221–239; and J.M. Finger and T. Murray, “Antidumping and Countervailing Duty Enforcement in the United States”, in Finger, supra n. 1, at 241–254.

12 Petersmann, E.-U., Constitutional Functions and Constitutional Problems of International Economic Law, (Fribourg University Press, Fribourg, Switzerland, and Oxford, Westview Press, 1991) xxvii.Google Scholar

13 One such case that came before the Israeli Supreme Court was a petition brought by the cloth manufacturers. Both their industry and the yarn manufacturing industry were protected. At one point, however, the Israeli government increased the protection of the yarn industry by imposing increased duties on imported yarn, thus jeopardizing the business opportunities of the cloth manufacturers — cf. Edgar Textile Industries Ltd. v. The Minister of Trade and Industry (1989) 43(i) P.D. 749.

14 Cf. E.-U. Petersmann, supra n. 12, at 110–111.

15 Hayek, F.A. von, Law, Legislation and Liberty, vol. 3: The Political Order of a Free People (London, Routledge & Kegan Paul, 1973–1982) 103.Google Scholar

16 Finger, supra n. 1, at 57; Bierwagen, supra n. 1, Chapter VI: Antidumping in the Future — Repeal It, at 157–169.

17 Steele, K., ed., Antidumping under the WTO: A Comparative Study, (London, Kluwer and International Bar Association, 1996) 3.Google Scholar

18 Stewart, Markel and Kerwin, supra n. 11, at 1687–1690.

19 Council Regulation (EEC) 2176/84, OJ 1984 L 201/1, arts. 11(1), 12(1).

20 Viner, supra n. 1, at 146–147; P.F.J. Marcory, “Cost of Production as the Sole Measure of Dumping”, in Jackson and Vermulst, supra n. 1, at 384–388.

21 Davey, W.J., “Antidumping Laws: A Time for Restriction”, in Hawk, B., ed., European/Americani Antitrust and Trade Laws (Fordham Corporate Law Institute, 1988) 15, at 8–1 to 8–17.Google Scholar

22 The definition of variable, as opposed to fixed, costs may be appreciably affected by the way respective economies of different countries operate. Thus, where there is work tenure, wages are fixed costs, whereas no work tenure implies that all wages are variable costs. Cf. also Jackson, J.H., Davey, W.J. and Sykes, A.O., Legal Problems of International Economic Relations, (St. Paul, Minn. West, 3rd ed., 1995) 669–670.Google Scholar

23 This is not necessarily true. Cf. Viner, supra n. 1, at 33 et seq.

24 Viner, supra n. 1, at 9–15.

25 Cf. Finger, supra n. 1, at 29–30.

26 Cf. Stewart, Markel and Kerwin, supra n. 11, at 1547.

27 The “export price” should be adjusted by first increasing the invoice price by (i) the cost of packaging, when such cost is not already included in the price; (ii) refunded or uncollected import duties of the exporting country; and (iii) countervailing duties imposed in the importing country; and then deducting (i) costs, charges and expenses and import duties (except countervailing duties) included in the price, and incident to bringing the merchandise from the exporting country to the place of delivery in the importing country; and (ii) the amount, if included in the price, of any export tax or other charge imposed by the exporting country. Cf. 19 USCA §1677a.

28 Cf. 19 USCA §1677a.

29 Cf. Stewart, Markel and Kerwin, supra n. 11, at 1551.

30 Vermulst, E. and Waer, P., EC Antidumping Law and Practice, (London, Sweet & Maxwell, 1996) 171–172.Google Scholar

31 Cf. Bierwagen, supra n. 1, at 45–71. These problems were heftily debated during the Uruguay Round, cf. Stewart, Markel and Kerwin, supra n. 11, at 1616–1625.

32 Sometimes the country of production and export are identical, yet the country of origin is different, since, under the rules of origin, the goods originate in another country. Cf. Commission Regulation 129/91 small screen colour televisions from Hong Kong, China OJ 1991 L14/31 (provisional duties); Commission Regulation 2376/94 colour television receivers from Malaysia, China, Korea, Singapore, Thailand, OJ 1994 L 255/50 (provisional duties).

33 Stewart, Markel and Kerwin, supra n. 11, at 1546.

34 Ibid., at 1548.

35 Ibid., at 1547.

36 Ibid., at 1545.

37 When calculating the constructed value, costs should normally be calculated on the basis of records kept by the exporter or producer under investigation. The records must be in accordance with the generally accepted accounting principles of the exporting country and reasonably reflect the costs associated with the production and sale of the product. Costs should be adjusted to take account of those non-recurring items of cost which benefit future and current production, or for circumstances in which costs during the period of investigation are affected by start-up operations (art. 2.2.1.1). Costs of manufacture include costs of labour; manufacturing overheads; financing costs related to the production process and packing costs. Costs of materials comprise total costs of raw materials, import duties and other costs incurred in obtaining the raw materials and waste during the manufacturing process. Cost of manufacture data should preferably relate to the production of the targeted goods. When the same factory is producing more than one product, it is necessary to allocate overheads among the products. Some of the problems encountered in such calculations are analyzed in detail by Stewart, Markel and Kerwin, supra n. 11, at 1553–1572.

38 Cf. Vermulst and Waer, supra n. 30, at 205.

39 S.H. no. 1337. The provisions of this law will be denoted as “sections”, to distinguish from those of the Antidumping Code, for which the term “article” has been applied.

40 I.e., rebates for quantities (12%); cash payment (4%); order of a full truckload (5%); delivery ex-factory (5%); advertisement and technical services (2%); agents' commission for assuming credit risk (2%).

41 Cf. art. 2.2 of the Code.

42 Cf. Stewart, Markel and Kerwin, supra n. 11, at 1578–1579, 1582–1584; Bierwagen, supra n. 1, at 11–19.

43 19 USCA §1673a (c)(4)(A).

44 19 USCA §1673a (c)(4)(B).

45 Paterson, R.K., Band, M.N.M., Finlayson, J.A. and Thomas, J.S., International Trade and Investment Law in Canada, (Scarborough, Ont., Carswell, 2nd ed., 1994) 8–38 to 8–39.Google Scholar

46 Vermulst and Waer, supra n. 30, at 291.

47 Photocopiers from Japan, OJ 1987 L 54/12 (definitive).

48 Boots with ice skates from Czechoslovakia, Romania, Yugoslavia, OJ 1985 L 52/48 (termination).

49 Case T-164/94 Ferchimex SA v. Council, CFI (28.9.1995) (nyr).

50 Joint Cases T-163/94 and T-165/94 NTN Corporation and Koyo Seiko Ltd. v. Council of the European Union (1995) ECR II -1381.

51 Cf. Bierwagen, supra n. 1, at 87; Stewart, Markel and Kerwin, supra n. 11, at 1414–1415.

52 Cf. Case 90 Korea—Antidumping Duties on imports of polyacetal resins from the US: Report of the WTO/GATT Panel adopted by the Committee on antidumping practices on April 27, 1993, in Pescatore, P., Davey, W.J. and Lowenfeld, A.F., Handbook of WTO / GATT Dispute, vol. 2, DD90/1, (The Hague, Kluwer, 1996) pp. DD90/25–33.Google Scholar

53 Stewart, Markel and Kerwin, supra n. 11, at 1572–1573.

54 Ibid., at 1573.

55 Ibid., at 1687–1691.

56 Vermulst and Waer, supra n. 30, at 369–376.

57 van Bael, I. and Bellis, J-F, Anti-Dumping and other Trade Protection Laws of the EC, (Oxfordshire, CCH Europe, 3rd ed., 1996) 203–211 Google Scholar; Stanbrook, C. and Bentley, P., Dumping and Subsidies: The Law and Procedure Governing the Imposition of Antidumping and Countervailing Duties in the European Community, (London, Kluwer, 3rd ed, 1996) 145–147.Google Scholar

58 Stanbrook and Bentley, supra n. 57, at 147–148.

59 Television camera systems from Japan, O J L 111/106 (30.4.1994), recital 26.

60 Vermulst and Waer, supra n. 30, at 374.

61 Case C-16/90 Detleff Noelle v. HZA Bremen-Freihafen, [1991] ECR 1–5163, per Advocate General Van Gerven, at p. 1–5177 para. 11; cf. Kulms, supra n. 1.

62 Stanbrook and Bentley, supra n. 57, at 152.

63 Ibid.

64 N.D. Palmeter, “United States”, in Steele, supra n. 17, at 261, 278–279.

65 Stewart, Markel and Kerwin, supra n. 11, at 1512.

66 Case 79 EEC — Regulation on Imports of Parts and Components (Report of the GATT Panel adopted on May 16, 1990), in Pescatore, Davey and Lowenfeld, supra n. 52, at DD79/1–14.

67 N. D. Palmeter, “The Antidumping Law: A Legal and Administrative Non tariff Barrier”, in Boltuck and Litan, eds., supra n. 1, at 64, 81–83; cf. also Kleinefeld, G. and Gaylor, D., “Circumvention of Antidumping and Countervailing Duty Orders through Minor Alterations in Merchandise: Where to Draw the Line?” (1994) 28(1) Journal of World Trade 77.Google Scholar

68 Stewart, Markel and Kerwin, supra n. 11, at 1616–1640.

69 A comparison of selected draft texts regarding anti-circumvention measures, as those evolved during the negotiations is given by Stewart, Markel and Kerwin, supra n. 11, at 1625–1638.

70 The ITC, first known as the Tariff Commission, is an independent government agency, made up of six commissioners, no more than three of whom may belong to the same political party. They are appointed by the President with the “advice and consent” of the Senate to nine year terms, with staggered expiry dates, and are not removable except for limited reasons. Cf. Kassinger, T.W., Gwynn, R.E., “Antidumping Duty Investigations”, in Johnston, C.R. Jr, ed., Law and Practice of United States Regulation of International Trade, (Dobbs Ferry, NY, Oceana, 1989)Google Scholar (Release 96–2, August 1996).

71 R. Boltuck and R.E. Litan, “America's ‘Unfair’ Trade Laws”, in Boltuck and Litan, supra n. 1, at 13, 14–19. Some of the problems of the US system are given by G.N. Horlick, “The United States Antidumping System”, in Jackson and Vermulst, supra n. 1, at 99, 104–110.

72 Coucil Regulation (EC) 384/96 (22.12.1995) on protection against dumped imports from countries not members of the European Community, OJ 1996 L 56/1 (6.3.1996).

73 Vermulst and Waer, supra n. 30, at 14.

74 The CFI assumed jurisdiction in March 1994. For the possible impact of the WTO rules on the scope of judicial review in the EC, in a manner that would restrict the discretionary powers of the dumping authorities cf. Schueren, P. Vander, “New Antidumping Rules and Practice: Wide Discretion Held on a Tight Leash?”, (1996) 33 C.M.L. Rev. 271.Google Scholar

75 40 L.S.I. 61.

76 HCJ 3549/97 Mif'alei Pelada Me'uhadim v. The Minister of Trade and Industry (submitted on 16.6.1997, not yet decided).

77 Supra n. 7.

78 Para. 3.3.11 infra.

79 The application should contain such information as is reasonably known to the applicant regarding: (i) the identity of the applicant and a description of the volume and value of the domestic production of the like goods by the applicant; (ii) a complete description of the allegedly dumped product, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and a list of importers of those goods; (iii) information on prices at which the product is sold, when destined for consumption on the domestic markets of the country or countries of origin or export, information on export prices, or, where needed, on the prices at which the products are first sold to an independent buyer in the country of importation; (iv) information on the evolution of the volume of the allegedly dumped imports, the effects of these imports on prices of the like product in the domestic market and the consequent impact of the imports on the domestic industry, as demonstrated by relevant factors and indices having a bearing on the state of the domestic industry.

80 Additional rules regarding the investigation: The authorities must satisfy themselves as to the accuracy of the information supplied by the parties, upon which their findings are based (art. 6.6). They may carry out investigations in the territory of other Members as required, after having obtained the consent of the firms concerned and notified the government of the relevant Member, provided that government did not object (art. 6.7; Annex I). Subject to confidentiality requirements, the results of such on-the-spot investigations, will be made available to interested parties (art. 6.7).

81 The same applies in the case of a further de minimis threshold of 3% relating to the volume of dumped imports from a particular country (art. 5.8). This rule is not applicable when countries which individually account for less than 3% of imports of the like product in the importing country, collectively account for more than 7% thereof.

82 The Commissioner may also require answers to questionnaires, or submission of calculations from: (1) the complainant; (2) the importer, exporter or supplier with goods subject-matter of the complaint; (3) any other person, or State authority, or any other entity, with regard to whom he has reasonable ground to assume that they have information on dumped imports. The Commissioner may require documents and information also from persons residing outside Israel.

83 The Committee's work is subject to regulations, enacted by the Minister of Trade and Industry and the Minister of Finance — Prevention of Dumping Regulations (working procedure of the Advisory Committee), 1979, K.T. no. 3984, p. 1216 (24.5.1979). The regulations were enacted under the previous Prevention of Dumping Law, 1977, (31 L.S.I. 63) repealed by the Trade Duties Law. According to the Interpretation Law, 1981 (35 L.S.I. 370), where the later legislation contains provisions that replace the old ones, such regulations remain in force until replaced by regulations enacted under the later law. The regulations authorize the Chairman to verify: (i) whether the data given in the complaint are prima facie founded; (ii) the price of goods for local consumption in the exporting country and their price for sale to third countries or the cost of production thereof; (iii) the price of the raw materials from which the goods are manufactured; (iv) any other information that may assist the Committee in arriving at a decision whether the goods are dumped, and whether the imposition of an AD duty is justified under the law. Since the Trade Duties Law has authorized the Commissioner to carry out most of the verification, it is unclear whether these regulations are still valid.

84 Reg. 7 of the Prevention of Dumping Regulations, ibid.

85 Cf. supra n. 75. Based upon the wording of the Foundations of the Budget Law, the Minister of Finance is of the opinion that his discretion is unfettered, subject only to judicial review by the Supreme Court, sitting as the High Court of Justice for its reasonableness. Although the duty accrues to the state treasury, the need to seek this approval emphasizes the irregularity of the Israeli current procedures.

86 On decision of the authorities concerned, upon request by exporters representing a significant percentage of the trade involved, to a period not exceeding 6 months (art. 7.4). If a duty lower than the margin of dumping is sufficient to remove injury, these periods may be 6 and 9 months, respectively. The rules governing imposition and collection of AD duties apply to provisional measures (art. 7.5).

87 Kulms, supra n. 1, at 292ff.; Bierwagen, supra n. 1, at 112; Jackson, J., “Perspectives of the Jurisprudence of International Trade: Costs and Benefits of Legal Procedure in the United States”, (1984) 82 Mich. L.R. 1570.CrossRefGoogle Scholar

88 If several suppliers from the same country are involved, and it is impractical to name all these suppliers, the authorities may name the supplying country concerned. If several suppliers from more than one country are involved, the authorities may name either all the suppliers involved, or, if this is impractical, all the supplying countries involved (art. 9.2).

89 The rules of access to information are given in USCA 19, §1677f, in CFR (Code of Federal Regulations) 19, §207.7 (regarding the ITC) and in CFR19, §353.33–.34 (regarding the ITA, Commerce); Taylor, J.A. and Vermulst, E.A., “Disclosure of Confidential Information in Antidumping and Countervailing Duty Proceedings under United States Law: A Framework for the European Communities”, (1987) 21 The International Lawyer 43 Google Scholar; J. Hippler Bello, “Access to Business Confidential Information in Antidumping Proceedings”, in Jackson and Vermulst, supra n. 1, at 349–353; cf. also Kassinger and Gwynn, supra n. 70, at 31–34; Jackson, Davey and Sykes, supra n. 22, at 695, 698.

90 Paterson, Band, Finlayson and Thomas, supra n. 45, at 4–29, 8–31.

91 van Bael and Bellis, supra n. 57, at 272–274.

92 Taylor and Vermulst, supra n. 89, at 45.

93 Case 264/82 Timex v. Council and Commission of the EC (1985) ECR 849 (antidumping duty on mechanical wrist watches); Case 113/77 NTN Toyo Bearing Co. v. Council of the EC (1979) ECR 1185; Al-Jubail Fertilizers v. EC Council [1991] 3 CMLR 377.

94 NTN Toyo Bearings, supra n. 93, at 1261.

95 Supra n. 72.

96 This rule applies unless the authorities determine, in a review initiated before that date, that the expiry of the duty is likely to lead to continuation or recurrence of dumping and injury. The duty may remain in force pending the outcome of such a review (art. 11.3).

97 The Commissioner may decide to review a duty earlier, if he deems it just (sec. 29(b)).

98 Joined cases T-163/94&T-165/94 NTN Corp. and Koyo Seiko Co. Ltd. v. EC Council [1995] ECR 11–1381.

99 Other rules regarding the public notices: A public notice (or separate report) regarding the imposition of provisional measures, must include sufficiently detailed explanations of the preliminary determinations on dumping and injury and refer to the matters of facts and law which have led to arguments being accepted or rejected. Such a notice or report must contain in particular, subject to confidentiality requirements, the names of the suppliers, or, if impracticable, the supplying countries involved; a product description, sufficient for customs purposes; the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value; considerations relevant to the injury determination; and the main reasons leading to the determination.

A public notice, or report, regarding the conclusion or suspension of an investigation in the case of an affirmative determination providing for the imposition of a definitive duty or the acceptance of a price undertaking, must contain all relevant information on matters of fact and law and reasons which have led to the imposition of final measures or the acceptance of a price undertaking. In particular, it must contain the information required in the case of provisional measures, and the reasons for the acceptance or rejection of relevant arguments or claims made by the exporters and importers.

A public notice, or report, regarding the termination or suspension of an investigation after acceptance of an undertaking must include the non-confidential part of this undertaking.

100 Cf. e.g. notice of initiation of proceedings (Sacks and bags from India, Indonesia and Thailand), OJ 1995 C 92/3; notice of definitive duty (Tungsten carbide and fused tungsten carbide from China), OJ 1995 64/1; notice of repeal of definitive duties (welded tubes from Yugoslavia (except Serbia and Montenegro), Romania, Turkey and Venezuela), OJ 1995 L 308/65.

101 19 FCR §201.17 — §201.19; §353.4.

102 Para. 3.3.1 supra.

103 19 USCA §1516a(b)(2)(A).

104 19 USCA §1516a(b)(2)(B).

105 Para. 3.3.1 supra.

106 Cf. Einhorn, T., The Role of the Free Trade Agreement between Israel and the EEC: The Legal Framework for Trading with Israel between Theory and Practice, (Baden-Baden, Nomos, 1994) 52–84 Google Scholar; Einhorn, T., “The Role of the Israeli Courts in Promoting Free Trade — A Critical Study in View of the EC-Israel FTA”, (1995) 12 Mehkarei Mishpat 165 Google Scholar; Einhorn, T., “The Application of WTO-law by the Courts of Law in the EU and in Israel”, in Rabello, A.M., ed., Essays on European Law and Israel (Jerusalem, The Sacher Institute for Legislative Research and Comparative Law, The Hebrew University of Jerusalem, 1996) 1023, at 1041–1043.Google Scholar

107 Cf. supra n. 76.

108 Proposal submitted by Adv. A. Dorot, Representative of the Federation of Israeli Chambers of Commerce on the Subcommittee (dated 6.2.1995). Such a tribunal has been established in Israel to decide issues of restrictive trade practices.

109 Bowring, J., ed., The Works of Jeremy Bentham, vol. 5 (New York, Russell & Russell, 1962) 235 Google Scholar (emphasis in the original text). The analogy to antidumping has been drawn by N.D. Palmeter, supra n. 67, at 88–89.