The Antidumping Act is in great trouble. Most of its troubles flow from a basic misconception about the role of an antidumping proceeding. A dumping case is sometimes looked on as analogous to private party litigation in which domestic producers seek to vindicate "rights" being injured by foreign exporters. In another view, it is sometimes regarded as analogous to a criminal proceeding in which the United States condemns and punishes certain methods of foreign price competition as "unfair." In my view, it is preferable to look at an antidumping proceeding as a method of resolving a conflict in the execution of the economic foreign policy of the United States. It is not feasible to attempt to characterize most methods of price competition as "fair" or "unfair," depending on the price charged in the home market. While egregious sales below home market prices are readily apparent, in many cases it is not known to anyone, including the foreign producer itself, whether sales are at less than fair value (hereinafter LTFV) under the American law until an exhaustive investigation has taken place. Even then, the decision is frequently arbitrary and capricious, because it depends so much upon the skill and pertinacity with which the data are presented on both sides and with which they are evaluated by the Customs Service and the Treasury Department.
The Antidumping Act: Proposals for Change,
Mich. J. Int'l L.
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