As many would be aware, I have been involved in the Investigation regarding the alleged dumping of power transformers exported from China, Indonesia, Korea, Taiwan, Thailand and Vietnam.
The Investigation commenced on 29 July 2013 and the findings in relation to the Investigation were finally publicised by the Anti-Dumping Commission ("ADC") in an advertisement in The Australian newspaper on 10 December 2014. This gave notice to the decision of the Parliamentary Secretary of the Department of Industry on 4 December 2014. The decision is certainly well after the normal 155 day period advertised for Investigations to be completed.
The decision of the Parliamentary Secretary was based on a Report by the ADC which has now also been published together with a Notice from the ADC. As would be expected, it is a lengthy and complex Report and warrants detailed consideration by those who are affected.
However it is worthy of some preliminary observations.
- Some parts of the Investigation were terminated earlier this month. The termination applied to a number of specified exporters based on a "no dumping" finding. There was also termination of the Investigation in relation to exports from China and Korea on the basis that the volume of goods exported from those countries during the Investigation Period was less than 3% of the total of import volumes of dumped imports during the period. However, that does leave open the possibility that the applicant may make a separate application which takes into account a more recent Investigation Period and which may well include larger volumes of "dumped" imports from China and Korea and open the possibility of imposing measures on such future imports.
- The findings on China and Korea largely flow from a ruling by the ADC that the definition of "date of export" related to the physical exportation of goods and not the date on which the exporters entered into contracts to sell the goods. This had a significant impact on the investigation given the lengthy period between ordering and manufacturing of power transformers.
- The findings and the associated Notice from the ADC refers to various dumping margins calculated by the ADC and approved by the Parliamentary Secretary in respect of exports from Indonesia, Taiwan, Thailand and Vietnam. This will have an impact on those who have imported these goods both in the past and in the future including the necessity to "convert" the securities previously given by importers based on the Preliminary Affirmative Decision issued by the ADC.
- The findings in the Report include reference to assessment of dumping margins for various exporters (to apply to their imports into Australia) although the reasons are only set out in a confidential attachment. Presumably, the exporters and the associated importers of those goods will be given access to those dumping calculations to ensure that they are in a position to challenge such calculations.
- As many of you would also be aware, the imposition of dumping duties is at a level intended to overcome the injurious effect on the Australian Industry from dumping. In this case, the applicant had identified a number of alleged causes of injury arising from the dumping. These are addressed, in part, in Chapter 7 of the Report. However, the ADC has made many of its specific findings on these injury issues as being confidential presumably at the instigation of the applicant. This seems very unfair and significantly disadvantages the affected exporters and importers as there is no transparency regarding the basis upon which injury has been established and which also therefore severely limits the ability to challenge those determinations.
- Parties may seek a review of the decision by lodging an application with the Anti-Dumping Review Panel within 30 days of publication of the notice (meaning 30 days from 10 December 2014).