A Study On Discretionary Power In U.S. Anti-dumping Law

Anti-dumping discretionary power is defined as in the course of anti-dumping enforcement, the anti-dumping administrative agencies in U.S. enjoy heavy freedom for madding what kind of decision, they can choose from all kinds of actions that may adopt, and decide whether to take a certain action or not to take action according to their judgment. Theoretically, anti-dumping discretion displays in anti-dumping legislature and judgment. But from the side of function, frequency of use and degree of effect, the discretion enjoyed by anti-dumping administrative agencies' judgment is the main reason for higher dumping margin and abuse of anti-dumping law.Anti-dumping discretionary power is a kind of administrative authority delegated to Department of Commerce(DOC) and International Trade Commission(ITC) by congress. It is a main form of authority of anti-dumping administrative agencies. Its main source is the general, fuzzy or ambiguous orders in anti-dumping law.The discretionary power in U.S. anti-dumping law exists in substantive and procedural rules of anti-dumping law.Chapter 1 explores the defenition,character,method,origin and the control over the discretionary power in U.S. anti-dumping law .according to the regulation stipulated in substantive rules of U.S. anti-dumping law, three essential elements should be provided when taking anti-dumping measures on imported products: dumping, injury and causation of injury by dumping. On the basis of delegation by the Congress, wide discretion is enjoyed when DOC determining dumping and ITC determining injury and causation of injury by dumping.Chapter 2 probes the discretionary power of DOC in determining dumping.before DOC determining dumping, comparable like product and its range should be determined at first; then the dumping margin should be calculated according to normal value and export price or constructed price; and determine whether the sale forms dumping on American market. At present, the most disputable field of anti-dumping lies on the discretion of method when DOC calculating,adjusting and comparing the three above price.Export price is the first relevant price of determining dumping. Export price includes export price and constructed price. Which one was used in the anti-dumping investigation depends on whether there is a correlate relation between the exporter of sued product and trader in America, then decided by DOC.When DOC determining like product, it always considers the physical characteristics of the product, chemical property, usage, production equipment, manufacturing engineering, appraisal of consumer and producer, substitutability, sales channel, price, etc. In addition, DOC needs to determine the country of origin of the product. Three variable values such as 2% in dumping margin, 3% and 7% in import volume and the rule of negligibility are very important when determining the country of origin. All these leave substantial room of discretion for DOC.For the sued product from market economy countries, three methods were usually adopted by DOC to determine the normal value: domestic price, price selling in a third country and constructed price. In practice, DOC often refuses to use domestic price and price selling in a third aunty, and prefers to use the method of constructed price. As to sued product from non-market economy countries, DOC gives up to simply adopt "analogue country" approach in early times, but has priority to adopt "factors of production approach". Only when "information is insufficient", "price of analogue country" approach was adopted. While choosing to adopt the above prices, DOC enjoys great discretionary power.According to U.S. anti-dumping law, normal value can't be compared with export print or constructed price directly. It can make comparison after a series of adjustment. The normal value and export price used to compare should be in the same level of trade. DOC has the right to decide whether make necessary adjustment to factors which may influence difference. Factors that usually needs to be adjusted includes: trade channel, sales volume, physical characteristics of the product, selling link, initial cost, exchange rate, etc. Sometimes several values of each factor should be adjusted. DOC enjoys great discretionary power for deciding whether to and how to make adjustment.Chapter 3 analyses the discretionary power of ITC in determining injury.the agency of determining injury is the ITC. The U.S. anti-dumping law stipulates that "material injuries to existing domestic related industry, threat of material injuries or retardation of the establishment of related industry which due to the exportation or sales or probability of sales of this product" was determined by ITC, domestic related industry suffering injury can be determined.Before determining whether domestic industry suffering injury or not, the primary task of ITC is to define the product range similar to sued product and domestic industry which established above like product. When ITC defining like product, "most closed characteristics and usage" have usually been used as criteria. The products' Customs Tariff Classifications, physical characteristics and usage, trade channel, consumers' tastes and habits, producers' tastes and habits, production equipment, manufacturing engineering and technical requirements to employees should be comprehensively compared. If suitable, price will be taken into consideration, too. When determining industry, a series of adjustment will be made by ITC. When adjusting the above like product and domestic industry, ITC enjoys great discretionary power."Material injury" refers to "the inessential, non-substantive, or unimportant danger". The meaning itself has great illegibility. When ITC making determination, a large number of economic factors should be taken into consideration. These factors reach more than 20. Threat of material injury refers to "though real material injury has not caused by imported products, sufficient evidence indicates that if not taking corresponding anti-dumping measure, material injury will emerge". When defining threat of material injury, a lot of factors should also be taken into consideration. There are nearly 10 main economic factors. In addition, sometimes ITC will make cumulative assessment of material injury in light of its needs. When making cumulative assessment, a large number of economic variables should be taken into consideration, too. In the course of the above consideration and assessment, ITC enjoys great discretionary power.Chapter 4 elaborates the discretionary power of DOC and ITC in theanti-dumping procedure. DOC and ITC also enjoy substantial discretionary power on procedural rules of anti-duping. It shows concretely on stages such as the initiative, investigation, preliminary and final determination, administrative review, etc.In order to ensure the execution of the anti-dumping to accord with the legislative intention of the Congress, a whole set of supervision and control mechanism were established in U.S. anti-dumping law, which totally according to the system frame of U.S. administrative procedural law. It can control the discretion of anti-dumping from two respects: inner and exterior, administration and judicature.Chapter 5 explores the administrartive control over the discretionary power, for administration control, carry out separation of powers in power control and give the administrative power of anti-dumping to DOC, ITC and Custom Department; in investigation control, definitude the basis of investigation initiation, strengthen publicity and secrecy of the investigation document; in determination control, stipulate dearly that make decision must be on the basis of hearing, expanding the range of the party, strict hearing process, sufficient evidence, insisting on the files, restriction of determinations, accordance with the precedent, etc.Chapter 6 researchs the judicial control over the discretionary power.for judicial control, set up special court, i.e. International Trade Court to make judicial review for determinations of anti-dumping; in the scope of review, the review for legal fact and conclusion are concluded; in criteria of review, adopt the criteria of "possessing support of material evidence that deposit in the record of files" or according with law in other respects" and "presumption, arbitrariness, abuse of discretion or not accordance with law in other respects". From the outside, there is a set of strict restriction mechanism in judicial review. However, the principle of limited review was used in the scope of review; the criteria of rational review was adopted in the criteria of review. So the restrictive function of judical review is very limited.Chapter 7 study the discretionary power by means of economical analysis, the fact that administrative agency abuses the discretionary power has been verified by American scholars whose method was quantity economics. The annual raise of dumping is the evidence of its abuse of discretionary power.This article concludes that there is no legal defect of administrative system to authorize discretion to administrative agency of anti-dumping; the origin of discretion abuse of anti-dumping is the legislation intention of protecting the domestic industry; the delegation of legislation is the system basis that causes discretion abuse of anti-dumping; the discretion abuse of anti-dumping is difficult to be controlled by procedural justice effectively; the discretion abuse of anti-dumping is difficult to be supervised by judicial review effectively; the reform voice in and out of U.S. might prevent the development of discretion system of anti-dumping in the future.Conclusive part is about the reference meaning.the reference meaning in China to study the discretion of U.S. anti-dumping law is that the administrative legal construction can be strengthened in China; the level of dealing with anti-dumping cases can be raised in China; the enterprises' ability to retort anti-dumping cases can be enhanced in China.