Ojasvi Nautiyal Aastha Gupta August 5 2022 Natural justice – key principles for trade investigations TPM Solicitors & Consultants | International Trade - India Ojasvi Nautiyal, Aastha Gupta International Trade IntroductionPrinciples of natural justiceCommentIntroductionThe principles of natural justice are a vital element of all justice delivery systems across the globe. The phrase "natural justice" means "law of nature" and implies that justice must:be fair, reasonable and equal;protect the rights of individuals against any arbitrary exercise of power by the state or its functionaries, including the judiciary; andprevent miscarriage of justice.While the concept of natural justice is not expressly codified under any statute or law, it is indispensable to any decision-making process that adversely impacts the substantive rights of individuals.While the principles of natural justice are not codified in India, the concept has evolved through court decisions over time. Initially, the concept of natural justice was restricted only to judicial proceedings and decisions rendered by the courts, which were required to adhere to such principles. Later, with the increasing role of administrative authorities in decision-making, administrative decisions taken by the authorities were also required to comply with principles of natural justice. In addition, there are certain administrative authorities that exercise adjudicatory functions, which include determination of facts and drawing conclusions therefrom, which forms the basis of an official action. Such authorities, known as "quasi-judicial" authorities, are also required to follow principles of natural justice when making decisions.Investigating authorities under different jurisdictions conducting trade remedial investigations are essentially quasi-judicial bodies performing quasi-judicial functions and, thus, must follow the principles of natural justice. The Supreme Court affirmed this in the case of Automotive Tyre Manufacturer's Association (ATMA) v Designated Authority. In this case, it was held that the functions performed by the Directorate General of Trade Remedies (DGTR), or the designated authority, are quasi-judicial functions under the statute, and, as a consequence, "the duty to follow the principles of natural justice is implicit in the exercise of power conferred on him [the designated authority] under the said Rules". Thus, trade remedial investigations conducted by the DGTR are required to comply with the principles of natural justice.Principles of natural justice The concept of natural justice broadly comprises two principles:nemo judex in causa sua (rule against bias); andaudi alteram partem (rule of fair hearing).The first principle of natural justice provides that no person shall be a judge in their own cause, in order to ensure that there is no personal, pecuniary or official bias in the decision-making process. Decisions made in violation of the principle are null and void. For example, if there is any evidence of bias in a finding, order or decision, the courts may set it aside.The second principle of natural justice, the rule of fair hearing, is an umbrella term that encompasses a number of rules, which ensure that no one should be condemned unheard. The procedure followed by a quasi-judicial body must safeguard the right of each individual to defend themselves by allowing them a fair opportunity. The procedure laid down for conducting trade remedial investigations in India under the Customs Tariff Act 1975 and rules made thereunder strictly comply with the rule of a fair hearing, as can be seen below.Right to notice The decision-making authority is required to give a valid and proper notice to the required parties before proceeding with any action against such parties. Rules 6 of the Anti-Dumping Rules provides that the designated authority must issue a public notice containing adequate information concerning the investigation. Further, such notice must be forwarded to all known exporters of the product, the governments of the exporting countries and any other interested parties. Additionally, the designated authority must notify all interested parties about any oral hearing conducted and, under rule 17(4) of the Anti-Dumping Rules, issue a public notice recording its final findings. Under Rule 16, before arriving at the final findings, the designated authority must also notify the essential facts under consideration, which form the basis of its decision, to all interested parties. Right to present and know evidenceAll parties to a proceeding have a right to present evidence to defend their case and also to be aware of or receive evidence that will be used against them while making a decision. At the stage of initiation itself, the authority will provide a non-confidential copy of the application filed by or on behalf of the domestic industry, under rule 6(2). Under rule 6(5), the DGTR can call for information from all interested parties which may allow it to draw conclusions. Further, under rules 6(3) and 6(7), the DGTR shall share evidence or information with all interested parties, including that filed by:the domestic industry;governments of subject countries;exporters;importers;users; andassociations representing them.Right to be heardA reasonable opportunity of being heard must be given to parties participating in proceedings. This opportunity may be oral or in written form. Rule 6(6) provides that the designated authority may allow any interested party or their representative any opportunity to present information orally. It is interesting to note that while the Anti-Dumping Rules provide that the authority "may" allow parties to present information orally, in India, such a hearing must be mandatorily provided when following the principles of natural justice.In fact, in the case of ATMA v Designated Authority, the Supreme Court even took the view that it is necessary that the decision-making authority that hears the interested parties must decide on the case. This implies that when there is a change in the incumbent designated authority, and the oral hearing has already been conducted before the earlier authority, the authority that is passing the finding must give a fresh hearing to all parties before making a final decision. As a result, in some cases, such as the anti-dumping investigation concerning flat-rolled products of stainless steel, there can even be three hearings.Reasoned decisionLastly, the designated authority is required to give a reasoned order. The findings issued by the designated authority must contain detailed reasoning with regard to its conclusions on dumping, injury and causal link, and its recommendations must be based on the same reasoning.Similar rules, ensuring compliance of principles of natural justice, are contained in Countervailing Duty Rules, Safeguard Duty Rules and Quantitative Restrictions Rules as well.CommentThe principles of natural justice, while not enshrined in any law expressly, have been sufficiently incorporated under the rules applicable to various trade remedial investigations. By virtue of such incorporation, the investigation process ensures that all parties involved are given equal and fair opportunity to present and defend their case, before the authority reaches a definitive conclusion, thus fulfilling the purpose of justice. After all, it has long been accepted that "justice should not only be done, but should manifestly and undoubtedly be seen to be done".(1)For further information on this topic please contact Ojasvi Nautiyal or Aastha Gupta at TPM Solicitors & Consultants by telephone (+91 11 4989 2200) or email ([email protected] or [email protected]). The TPM Solicitors & Consultants' website can be accessed at www.tpm.in.Endnotes (1) Lord Hewart in Rex v Sussex Justices,  1 KB 256.