DS: Pakistan — Anti-Dumping Measures on Biaxially Oriented Polypropylene Film from the United Arab Emirates

Factual background

This dispute concerns a challenge to successive anti-dumping duty measures that Pakistan adopted on imports of biaxially oriented polypropylene (BOPP) film from, among other sources, the United Arab Emirates. The United Arab Emirates challenged, first, a final anti-dumping duty determination dated 9 April 2015 that assessed anti-dumping duties on imports of BOPP film from the United Arab Emirates until August 2015; this final determination of 9 April 2015 ratified a final determination of February 2013, which had been set aside following domestic court proceedings. Second, the United Arab Emirates challenged a sunset review determination of 1 December 2016, which extended the anti-dumping duties for five years.

The Panel's findings

The Panel found that the final determination of 9 April 2015 is inconsistent with:

1. Article 5.3 of the Anti-Dumping Agreement because, by initiating the investigation on the basis of evidence that was several years old without explaining why it was appropriate to do so or seeking to obtain more recent evidence, Pakistan did not assure itself that there was sufficient evidence to justify the initiation;
2. Articles 2.1 and 3.1 of the Anti-Dumping Agreement because, by basing its determination of dumping and injury on evidence that was 22 months old at the time of initiation and 31 months old at the time of the determination of 2013, without explaining this choice, without attempting to update the evidence, and without establishing that it was not possible to update the evidence, Pakistan made a determination of dumping without evidence of current dumping, and made a determination of injury without evidence of current injury;
3. Articles 3.1 and 3.2 of the Anti-Dumping Agreement, because Pakistan did not objectively consider whether the volume of dumped imports in absolute terms and relative to domestic production had increased significantly, and whether the effect of the dumped imports on prices of the like product had been significant price undercutting and significant price depression;
4. Articles 3.1 and 3.4 of the Anti-Dumping Agreement, because Pakistan did not evaluate all the injury factors listed in Article 3.4, and did not objectively evaluate the impact of the dumped imports on the state of the domestic industry; and
5. Articles 3.1 and 3.5 of the Anti-Dumping Agreement, because Pakistan based its causation analysis on findings that were inconsistent with Articles 3.1, 3.2 and 3.4, and did not ensure that injury caused by other known factors was not attributed to the dumped imports.

The Panel found that the United Arab Emirates did not establish that the final determination of 9 April 2015 is inconsistent with:

1. Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2 of the Anti-Dumping Agreement with regard to the cost data relied upon to determine whether sales were in the ordinary course of trade;
2. Article 2.4 of the Anti-Dumping Agreement with regard to the denial of an adjustment for level of trade;
3. Article 5.10 of the Anti-Dumping Agreement with regard to the duration of the original investigation; and
4. Article 6.2 of the Anti-Dumping Agreement with regard to due process rights in the context of the adoption of the final determination of 9 April 2015, ratifying the final determination of February 2013.

The Panel found that the sunset determination of 1 December 2016 is inconsistent with:

1. Article 11.3 of the Anti-Dumping Agreement, because in determining that dumping and injury were likely to continue or recur, Pakistan relied on a margin of dumping calculated inconsistently with Article 2, did not rely on positive evidence, did not explain how the data supported its findings and how its findings supported its conclusions; and
2. Article 11.4, because Pakistan did not conclude the sunset review within 12 months from initiation, in the absence of abnormal circumstances.

The Panel exercised judicial economy on a number of other claims against either or both measures.

The Panel's recommendation and suggestion

The Panel recommended that Pakistan bring its measures into conformity with its obligations under the Anti-Dumping Agreement, and suggested that Pakistan do so by withdrawing the anti-dumping measures it assessed on imports of BOPP film from the United Arab Emirates.