China used anti-dumping rules against us because what goes around comes around



Ludomił Sawicki/Unsplash, CC BY

Simon Lacey, University of Adelaide

Australia has acted with dismay to China’s decision to impose punitive mostly “anti-dumping” tariffs of 80.5% on imports of Australian barley.

The culmination of an 18-month investigation, China’s move threatens to wipe out Australian barley exports to China, worth A$600 million in 2019, unless China withdraws the measure either unilaterally or following a successful challenge at the World Trade Organisation (WTO).

However poorly justified, there are precedents for what China has done, many of them from Australia.


Australian anti-dumping and countervailing measures by country, March 2020


Anti-Dumping Commission, March 31, 2020

Australia was among the first wave of countries to adopt anti-dumping legislation alongside Canada, New Zealand, the United States and Britain in the early years of the 20th Century.

It remains a prolific user of the system compared to other countries, with an outsized number of measures imposed against imports from one country, China, and imports of one product, steel.

What are anti-dumping measures?

One way to think about anti-dumping measures is the international equivalent of domestic measures intended to combat predatory pricing.

Guidance from the Australian Competition and Consumer Commission says that while it is usually okay to sell goods at a below-cost price, “it may be illegal if it is done for the purpose of eliminating or substantially damaging a competitor”.

But in the case of international anti-dumping measures, there is no need to prove purpose.

It suffices that an investigation finds the imported goods were sold below their corresponding price in the home market and that this caused or threatened to cause harm to a domestic industry producing the same sort of goods (known as “like products”).

Chinese steel, glass, cables and A4 copy paper

Technically, Australia imposes two types of measures: “anti-dumping measures”, which are additional duties on so-called dumped imports which are held to have injured Australian industry, and “countervailing measures” which are additional duties on subsidised imports that have injured Australian industry.

They are currently in place or proposed against Chinese wind towers, glass, electric cables, chemicals, herbicides, A4 copy paper and aluminium products, as well as steel.

In theory, WTO rules only allows anti-dumping measures for limited periods (China’s measures on barley have been imposed for five years) but in practice, once in place these measures can be difficult to remove.

They shield us from cut-throat competition

In the broader context of Australia’s relationship with China, they play an important role, shielding Australian import-competing industries from the full and potentially crushing impact of free trade with China.

One aspect of their use that has been particularly galling to Chinese officials is Australia’s failure to follow through on a commitment it made during the China-Australia Free Trade Agreement negotiations to treat China as a market economy for the purpose of anti-dumping investigations.

The concession was seen as highly significant by China and would have made it harder for Australia to conclude that some goods were not being sold at fair prices.




Read more:
Barley is not a random choice – here’s the real reason China is taking on Australia over dumping


Australia’s continued use of anti-dumping measures has come under repeated criticism from the Productivity Commission, almost entirely on the basis of economic efficiency arguments.

However, these criticisms ignore a number of important concerns, including the need to keep these measures so they can be used to hit back against other countries that use them. It would make little sense to remove them until other big users agreed to do the same.




Read more:
It’s time to drop Australia’s protectionist anti-dumping rules


Another important consideration, which has received greater attention during the current coronavirus crisis, is the need for – systemic resilience. If Australia becomes totally reliant on other countries for (say) steel, it’ll have less ability to get it when it is needed.

Before asking ourselves whether we are prepared to liberalise or do away with our current anti-dumping regime, we need to be able to answer the very important question of whether we are equally prepared to do away with our domestic steel, aluminium, paper and other industries.

I suspect that the answer to this question is no.

There are of course other ways to reinforce these industries or shield them from import competition, but it is more than likely that none would be as effective as the current system of anti-dumping duties. We have kept them because we still have some use for them.




Read more:
China might well refuse to take our barley, and there would be little we could do


The Conversation


Simon Lacey, Senior Lecturer in International Trade, University of Adelaide

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Shorten’s plan to triple anti-dumping penalties misunderstands the law


Weihuan Zhou, UNSW

Bill Shorten’s proposal to triple anti-dumping penalties demonstrates a misunderstanding of dumping and its impact on the economy. It also misunderstands when anti-dumping measures may be lawfully applied and to what extent.

Shorten’s proposal is purportedly to prevent Australia from becoming a “dumping ground for cheap foreign goods sent here by trade cheats”. The Opposition Leader says Labor is a strong believer in trade, but it should be conducted on a “level playing field”. He also wants to give the Anti-Dumping Commission 30 new staff and new responsibilities.




Read more:
Australia may be engaging in ‘free trade’ but it’s becoming more protectionist too


There are no existing penalties in the World Trade Organisation (WTO) anti-dumping regime, or in Australia’s anti-dumping regime – that would be in breach of WTO rules. Australia’s current regime involves the use of anti-dumping measures to counteract injury caused by dumped imports to domestic industries. These typically take the form of import tariffs.

Anti-dumping measures like duties are not “penalties” as such, but simply taxes in the form of a customs duty to remove the injury caused by dumping.

In recent years, the use of anti-dumping measures has been on the rise predominantly to protect the steel industry in Australia.

Current dumping rules

“Dumping” is when an exporter exports goods to another country at an export price less than what it sells the same like goods in its own country. Under WTO rules, this is neither illegal nor unlawful.

It is a perfectly legitimate commercial practice. In fact, in 2016 the Productivity Commission found there was no compelling economic rationale for a country like Australia to act against dumping.

Rather than prohibiting the practice of dumping, WTO anti-dumping rules only provide a remedy where the dumping causes material injury to a domestic industry in the country of import, for example reduced revenues and profits. The remedy is the imposition of dumping duties, or customs duties.

This should be equal to or less than the margin of dumping – the extent to which an exporter’s export price is lower than its home market price.

It’s not clear how the “triple penalties” proposed by Shorten could be imposed in line with the WTO rules.




Read more:
It’s time to drop Australia’s protectionist anti-dumping rules


Increasing penalties could hurt the economy

Mr Shorten’s anti-dumping penalties would have several effects – including to increase prices of imported goods and inputs for Australian produced goods. This price rise would be passed on to Australian companies and consumers. For example, this would increase the cost of steel for construction industries.

Shorten’s policy would benefit a small group of import-competing industries, such as those producing steel and A4 copy paper, including companies that are wholly owned by foreign companies. But such policy completely ignores the interest of Australian manufacturers using imported materials, their employees or consumers.

Increased dumping penalties could also stifle competition, increasing prices. This could also increase unemployment, as the imposition of the penalties would make the cost of business uneconomical.




Read more:
Consumers lose out to Australia’s protectionist anti-dumping laws


Shorten’s policy on dumping seems misguided and ill-informed and can only operate to Australia’s detriment. These observations are consistent with the findings of the Productivity Commission that Australia’s anti-dumping system has become increasingly more protectionist and damaging.

In the interests of fair trade, similar penalties would need to apply to Australian companies engaged in dumping, and to both export and domestic sales to ensure a “level playing field”.

More fundamentally, as the Productivity Commission has observed, “fairness” does not provide a justification for anti-dumping measures which fail to consider the impact of such measures on the community as a whole.

What’s more, Shorten’s “triple penalty” could drag Australia into the ongoing trade conflict and harm Australian consumers and industries using imports from China. If the “triple penalty” provokes China’s retaliation, that will hurt Australian goods and services exporters.

The ConversationThis article was co-authored by Andrew Percival, Principal at Percival Legal.

Weihuan Zhou, Senior Lecturer and member of China International Business and Economic Law (CIBEL) Initiative, Faculty of Law, UNSW Sydney, UNSW

This article was originally published on The Conversation. Read the original article.