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Sunset Reviews in South Africa: New Direction given by the High Court

Trade Briefs

Sunset Reviews in South Africa: New Direction given by the High Court

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The International Trade Administration Commission (ITAC) was established in terms of the International Trade Administration Act, 71 of 2002 (ITA Act), and became operational on 1 June 2003. On 21 May 2007 the High Court for the first time handed down judgement in a case involving ITAC and trade remedies. This related to specific aspects of a sunset review.

To date South Africa has conducted at least 64 sunset reviews of anti-dumping duties, i.e. the reviews that have to be conducted five years after the imposition of such duties. South Africa’s sunset review procedure is not in line with the practice followed in jurisdictions such as the European Union and the United States of America (USA) and also does not conform to the South African legislative requirements. Several consultants, including the author, have complained that the procedures used by ITAC in sunset reviews are inappropriate and that it is more difficult to have an anti-dumping duty maintained following a sunset review than it is to have an anti-dumping duty imposed in the first instance.

In the Carbon black – Egypt sunset review, the domestic industry lodged an application that the anti-dumping duties be maintained. ITAC found that it was not likely that there would be a recurrence of dumping and rejected the application. The industry referred this decision for judicial review on 19 June 2006 and on 21 May 2007 the High Court ruled against ITAC, finding that its methodology to determine the likelihood of a recurrence of dumping was flawed.

This Trade Brief considers the importance of sunset reviews, the facts of the Carbon black – Egypt sunset review, ITAC’s procedure in determining the likelihood that dumping would recur and the High Court’s decision, indicating how the Court’s decision may affect sunset reviews in future.

Readers are encouraged to quote and reproduce this material for educational, non-profit purposes, provided the source is acknowledged. All views and opinions expressed remain solely those of the authors and do not purport to reflect the views of tralac.


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