Overview

Canadian Trade Remedy Law and Practice is both a comprehensive guidebook and a valuable reference text that focuses on the areas of anti-dumping and countervailing — the main elements of the Canadian trade remedy system. The author, Lawrence L. Herman, details the key areas of Canadian trade law that have been altered by the World Trade Organization (WTO) Agreement of 1994. The book then presents the main points private practitioners and corporate counsel must know to navigate today’s anti-dumping and countervailing duties as well as other extraordinary border relief.

Canadian Trade Remedy Law and Practice contains valuable precedents and copies of key Revenue Canada and Canadian International Trade Tribunal (CITT) documents — never before available in such an accessible format. The result is an easy-to-read guidebook of Canada’s trade remedy system that both specialists and generalists will quickly dog-ear.

Top ∧Content Summary

• Overview of the International Trade Law Regime
• Canadian Anti-Dumping and Countervailing Duty Laws
• Initiation of an Investigation by Revenue Canada
• Procedures Following the Commencement of the Investigation
• The Concept of Normal Values
• The Export Price of the Goods and the “Related Company” Issue
• Subsidies
• Settlement of Trade Actions Through Undertakings
• Access to Confidential Information
• Injury Inquiries by the Canadian International Trade Tribunal
• Public Interest Representations
• Sunset and Reviews
• Anti-Circumvention Measures
• After the Finding — Revenue Canada Enforcement Measures
• Judicial Review of Tribunal Findings
• State-to-State Dispute Settlement
• Safeguards or “Emergency” Relief
• Sources and Reference Material
• Preface

Concentrating on the areas of anti-dumping and countervailing duties, this book explains the main elements of the Canadian trade remedy system. This system is founded on rules set down in the original text of the 1947 General Agreement on Tariffs and Trade (GATT). The 1947 GATT has been refined extensively over the years through successive multilateral negotiations, most recently by the 1994 World Trade Organization (WTO) agreements concluded at the end of the Uruguay Round negotiations.

The following chapters look at the impact of the WTO modifications to the original 1947 GATT on Canada's trade law regime. They also examine the impact of the Canada-US Free Trade Agreement (FTA) and its successor, the North American Free Trade Agreement (NAFTA).

When examining the Canadian trade remedy system, it is important to keep in mind the interrelationship among these various international agreements:

• The original GATT of 1947, which liberalized international trade in the post-World War II era and which governed rules of international commerce for over 30 years through a multitude of rulings and decisions.
• The various GATT codes that were concluded at the end of the Tokyo Round negotiations (1974-1979) and that elaborated on the original 1947 GATT in the area of dumping and subsidies (and many other areas) but that co-existed as a separate package of treaties
• The WTO agreement that resulted from the Uruguay Round negotiations (1988-1994), which entered into force on April 15, 1994. The WTO agreement subsumed the 1947 GATT and all of its accessions and protocols and replaced the 1979 codes with more detailed rules and obligations that are contained in the various sub-agreements making up the WTO package.

The WTO agreement is the key international instrument governing world trade. Within the WTO agreement is the GATT 1994, which in turn encompasses the old 1947 GATT, additional protocols relating to the tariff concessions negotiated in the Uruguay Round, protocols of accession to the GATT 1994, GATT contracting party decisions, understandings on the interpretation of certain GATT 1994 articles, and the Marrakesh Protocol to the GATT 1994.

The WTO agreement also establishes the WTO itself as an international organization with legal personality and a decision-making structure and with a permanent secretariat in Geneva. This is an important development in and of itself, because the status of the former GATT secretariat was legally unclear, lacking both a formal constitutional structure for decision making and an umbrella treaty establishing the basis of its existence and powers. The WTO agreement remedies this.

The WTO agreement contains important sectoral and other agreements. These include the agreements on agriculture; sanitary and phytosanitary measures; technical barriers; textiles and clothing; investment measures; rules of origin; licensing; trade in services; intellectual property rights; and, important for the pages that follow, the 1994 anti-dumping agreement and the 1994 agreement on subsidies and countervailing measures.

Top ∧Full Table of Contents

ACKNOWLEDGMENTS

PREFACE

CHAPTER 1 - Overview of the International Trade Law Regime

• The 1947 GATT
• A Closer Look at the Uruguay Round

CHAPTER 2 - Canadian Anti-Dumping and Countervailing Duty Laws

CHAPTER 3 - Initiation of an Investigation by Revenue Canada

• Preparation and Filing of a Complaint
• Preliminary References to the Tribunal

CHAPTER 4 - Procedures Following the Commencement of the Investigation

• Tactical Considerations
• Requests for Information
• Time Periods and the Preliminary Determination

CHAPTER 5 - The Concept of Normal Values

• Transaction-Based Normal Values
• Constructed Normal Values

CHAPTER 6 - The Export Price of the Goods and the “Related Company” Issue

• Transaction-Based Export Prices
• Alternate Methodology for Determining Export Price

• Transaction-Based Export Prices
• Alternate Methodology for Determining Export Price

CHAPTER 7 - Subsidies

• Definitional Issues at the International Level
• Canadian Subsidy Law
• General Availability Versus Specificity
• Conclusions

CHAPTER 8 - Settlement of Trade Actions Through Undertakings

• Access to Revenue Canada’s Record
• Access to the Confidential CITT Record

CHAPTER 10 - Injury Inquiries by the Canadian International Trade Tribunal: An Overview

CHAPTER 11 - Injury Inquiries by the Canadian International Trade Tribunal: The Material Injury Concept

CHAPTER 12 - Injury Inquiries by the Canadian International Trade Tribunal: Injury Factors

• The Impact of the WTO Agreements
• The SIMA Regulations and the CITT Rules
• The Preparation of the Staff Report
• Economic Modeling To Measure Injury
• Determination of Causality
• Losses in Market Share
• Production Declines and Lost Sales
• Lost Projects
• Price Erosion and Price Suppression
• Non-Dumping Factors
• Intra-Industry Competition
• Inability To Supply the Market
• Quality Problems
• Recessionary Factors
• Threat of Material Injury
• Conclusions

CHAPTER 13 - Injury Inquiries by the Canadian International Trade Tribunal: Cumulation and Exclusion

• Cumulation
• Exclusions

CHAPTER 14 - Public Interest Representations

CHAPTER 15 - Sunset and Reviews

• Interim Review
• Five-Year Sunset Review

CHAPTER 16 - Anti-Circumvention Measures

CHAPTER 17 - After the Finding: Revenue Canada Enforcement Measures

CHAPTER 18 - Judicial Review of Tribunal Findings

• Introduction
• The “CUPE ”Legacy
• Canadian Versus US Review Standard
• The Canadian Review Standard in FTA and NAFTA Panels
• Extraordinary Challenges Under NAFTA
• Conclusions

CHAPTER 19 - State-to-State Dispute Settlement

• The GATT and Canadian Law
• Dispute Settlement under the WTO
• Dispute Settlement Under NAFTA
• Canada’s Landing Requirement for Pacific Coast Salmon and Herring

CHAPTER 20 - Safeguards or “Emergency” Relief

CHAPTER 21 - Sources and Reference Material

• The World Trading System: The GATT and WTO Agreement
• The FTA and the NAFTA
• Canadian Trade Remedy System

ANNEX A - Revenue Canada, Request for Information

ANNEX C - CITT, Notice of Appearance, etc.

ANNEX D - Canadian International Trade Tribunal: Sample Manufacturer’s Questionnaire

ANNEX E - Canadian International Trade Tribunal: SIMA Section 76 Reviews, Notice of Expiry, Notice of Review and Related Materials

ANNEX F - North American Free Trade Agreement: Request for Panel Review Chapter 19, Article 1904

ANNEX G - Canadian International Trade Tribunal: SIMA Procedural Changes