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An Evaluation of Antidumping Laws As Applied to Companies Existing in Nonmarket Economies Lydia Brashear

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An Evaluation of Antidumping Laws As Applied to Companies Existing in Nonmarket Economies Lydia Brashear American University International Law Review Volume 5 | Issue 3 Article 4 1990 Factors or Prices? An Evaluation of Antidumping Laws as Applied to Companies Existing in Nonmarket Economies Lydia Brashear Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Brashear, Lydia. "Factors or Prices? An Evaluation of Antidumping Laws as Applied to Companies Existing in Nonmarket Economies." American University International Law Review 5, no. 3 (1990): 893-920. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. NOTES & COMMENTS FACTORS OR PRICES? AN EVALUATION OF ANTIDUMPING LAWS AS APPLIED TO COMPANIES EXISTING IN NONMARKET ECONOMIES Lydia Brashear* INTRODUCTION One area of United States trade policy focuses on the effect of for- eign imports on American industries.' To counter the effect of foreign import injury, domestic industries request that the United States De- partment of Commerce (DOC) enforce laws to determine whether for- eign companies are illegally "dumping" their products into the United States economy.' To determine foreign companies' compliance with fair competition laws, Congress and the DOC have developed procedures for penalizing foreign companies that harm or threaten to harm Ameri- * J.D. Candidate, 1991, Washington College of Law, The American University. This article is dedicated in memory of my mother, Lydia Rothman Brashear. 1. See Jackson, Introduction: Perspective on Antidumping Law and Policy, re- printed in ANTIDUMPING LAW: POLICY AND IMPLEMENTATION 1 (1979) (stating that although trade policy concerns foreign relations, in the United States trade has often been viewed as an internal policy issue). The United States treats trade as a domestic issue because private citizens and businesses demand to participate in decisions ulti- mately affecting them. Id. at 2. 2. Id. Dumping refers to a foreign company's practice of selling its goods in the United States at prices lower than those in the foreign company's home market. Id. The laws penalize foreign companies only to the extent that the dumped products hurt domestic companies. INTERNATIONAL TRADE ADMINISTRATION, U.S. DEP'T OF COM,- MERCE, SUMMARY OF PROCEDURES FOR ANTIDUMPING FAIR VALUE INVESTIGATIONS UNDER TITLE VII OF THE TARIFF ACT OF 1930 AS AMENDED 5 (1987) [hereinafter SUMMARY OF PROCEDURES]. The ITA estimates dumping duties at the level that the value of merchandise exceeds the United States price. Id. The Code defines dumping margins as the amount by which the foreign market value exceeds the United States price of the merchandise. 19 C.F.R. § 353.2(f) (1989). The weighted average dumping margin is the result of dividing the aggregate dumping margins by the aggregate United States prices. Id. 894 AM. U.J. INT'L L. & POL'Y [VOL. 5:893 can industries.3 Under congressionally enacted rules and procedures, the DOC determines when and to what extent a foreign company is dumping its products.4 Antidumping laws, which serve several main purposes, 5 most importantly deter foreign companies from attempting to sell their products at less than fair value (LTFV)6 in the United 7 States. The Omnibus Trade and Competitiveness Act of 19888 (1988 Trade Act) substantially changed the procedures for determining when im- ports from nonmarket economies 9 (NMEs) threaten the ability of American producers to sell their products and earn profits.10 This case comment will focus on the changes in United States trade law and the effect of these changes on determining when NME companies violate that law. Presently, changes in world order, economic alignment, and the recent political and economic shifts in the Union of Soviet Socialist 3. See INTERNATIONAL TRADE ADMINISTRATION, U.S. DEP'T OF COMMERCE, UNITED STATES ANTIDUMPING/COUNTERVAILING DUTY LEGISLATION 1 (1987) [here- inafter ANTIDUMPING LEGISLATION] (describing the DOC's application of antidumping laws and countervailing duties to determine when the United States should redress in- juries to domestic industries caused by foreign company imports). 4. Id. at I; see also Coursey & Binder, Hypothetical Calculations Under the United States Antidumping Duty Law: Foreign Market Value, United States Price, and Weighted-Average Dumping Margins, 4 AM. U.J. INT'L L. & POL'Y 537, 537-53 (1989) (describing how dumping calculations are made in a hypothetical case). 5. SUMMARY OF PROCEDURES, supra note 2, at 1; see U.S. DEPT. OF COMMERCE, THE TOKYO ROUND TRADE AGREEMENTS: ANTIDUMPING DUTIES 1, 1 (1982) [herein- after TOKYO ROUND] (claiming that antidumping duties "neutralize the effect" of dumping, protect American companies, and "promote fair international trade"). 6. SUMMARY OF PROCEDURES, supra note 2, at 1. The statute itself provides no definition of less than fair value (LTFV) sales. Id. A LTFV sale occurs when the "free on board" (FOB) plant price to purchasers in the exporter's home market exceeds the FOB plant price to United States purchasers. Id. The FOB is a price option contract term between the seller and the buyer of international goods. R. FOLSOM, M. GORDON & J. SPANOGLE, INTERNATIONAL BUSINESS TRANSACTIONS 34 (1986) [hereinafter R. FOLSOM]. When the buyer purchases goods FOB, the contract price of the goods in- cludes the list price of the goods plus the cost of crating the goods for shipment. Id. 7. ANTIDUMPING LEGISLATION, supra note 3, at 1. In comparison to dumping laws, countervailing duty laws penalize infringing countries with an unfair trade advantage caused by their own government provided subsidies. Id. 8. Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, § 1316(b)(18), 102 Stat. 1107, 4143 (1988) (amending 19 U.S.C. 1677 Supp. 1988). 9. Id. The term NME refers to an economy in which the forces of supply and demand fail to operate freely. FOLSOM, supra note 6, at 1037. NMEs usually exist in communist countries where the government's intervention in the economy monopolizes all forms of trade. Allan & Hiscock, East-West Trade: The Philosophies and Practi- calities of State Trading, 8 MONASH U.L. REV. 135, 135 (1982). In trading with NME companies, the western importer will often deal with state trade organizations or other governmental agencies. R. FOLSOM, supra note 6, at 12. Economists often charac- terize NME nations as having a shortage of hard currency. Id. 10. See infra notes 67-74 and accompanying text (describing the changes facili- tated by the 1988 Trade Act's NME provisions). 1990] ANTI-DUMPING LAWS IN NMES Republics (USSR) and the East European bloc countries have in- creased the significance of this trade issue." Additionally, as the inter- dependence among nations increases, the United States' concern over the actions of its trade partners correspondingly increases. 2 This Comment will analyze the complexity of applying the new 1988 Trade Act to cases concerning NME countries. 3 Part I provides a background, describing, first, how the International Trade Commission (ITC) and the International Trade Administration (ITA)"4 proceed with dumping determinations and, second, how the NME element in- fluences these dumping calculations. Part II discusses the ITA's recent determination in Urea from the Union of Soviet Socialist Republics,' while Part III analyzes the ITA's decision and illuminates the difficulty of applying complicated rules to this area of trade law. Part III then discusses alternatives to the present NME dumping calculation by ex- 11. Watson, Super Partners, NEWSWEEK, Dec. 11, 1989, at 31. The discussions between Gorbachev and Bush during the Malta summit, held aboard the Maxim Gorky, indicate that the United States and the USSR want to facilitate increased free trade. Id. The United States hopes to aid the USSR in achieving needed economic reform, or perestroika, by approving more liberal free trade agreements between the two countries. Id. During the summit, Bush's proposals for aiding the USSR included negotiating a new trade agreement that would give the USSR most favored nation status, concluding a treaty to protect and encourage American investment in the USSR, and eventually offering the USSR observer status in the General Agreements on Tariff and Trade (GATT). Id.; see Giscard d'Estaing, Nakasone, Kissinger, East- West Relations, 68 FOREIGN AFFAIRS 2, 14 (1989) (stating that Gorbachev intended the Soviet Union to become a "normal" participant in international economic rela- tions); Hey, How Much is That in Rubles?, 37 NAT'L J. 2,245, 2,245 (1989) (revealing one example of the USSR's recent attempts at capitalism through a Soviet competition to develop the best idea for converting the ruble to hard currency). 12. See Jackson, supra note 1, at 2-3 (1979) (discussing the revolutionary develop- ments affecting modern trade policy). These revolutionary developments include: (1) an increased degree of international interdependence; (2) sharp fluctuations in the relative prices of goods; (3) the aftermath and breakdown of post World War 11 rules of mod- ern trade conduct; and (4) the revelation that the GATT's inflexibility and outdated- ness cannot remedy problems in the modern trade world. Id.; Stanfield, Beyond the Cold War, 37 NAT'L J. 2,254, 2,254 (1989) (describing the recent changes in the So- viet Union and eastern bloc countries). East-West specialists acknowledge that develop- ing a new economic relationship is a "plunge into the uncharted." Id. at 2,257. Yet United States economic involvement is crucial not only for the Soviets but to maintain American relations with Western Europe. Id. Many commentators agree that the United States can only help the USSR by removing obstacles impeding free trade be- tween the two countries.
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