Strategising Protectionism: An Analysis of India’s Regulation of Anti-Dumping Duty Circumvention

Abstract

Circumvention (or evasion) of anti-dumping duties, though widely debated during the Uruguay Round negotiations, led to nothing but a three paragraph long Ministerial Decision acknowledging the problem. Nevertheless, the European Union (EU), USA and India have gone on to incorporate anti-circumvention rules in their domestic regulations. However, principally against the Free Trade Theory and leaving excessive scope for protectionist abuse, these rules seem to protect the domestic industries even from fair trade. This is especially true considering the difficulties faced in differentiating between legitimate commercial activities and intentional cases of circumvention. Apart from highlighting the potential inconsistencies of these rules with the Anti-Dumping Agreement, the present paper explores the theoretical aspects of Indian law on circumvention in detail. In the absence of any judicial interpretation on it, reference to the EU law has been made to clarify various principles considered as grey areas that are yet to be settled. This comparative analysis helps give an idea about the quantitative and qualitative tests that can be borrowed from EU jurisprudence to make the law less ambiguous. However, a better alternative might be to deal with such cases with the help of already existing anti-dumping laws and other simpler solutions. Such alternatives become especially important when the cost of protectionist abuse and the risk of protection from even ‘fair trade’ outweigh the burden of fresh investigations in the long run.