“The [2018 Act] sets out the framework for the UK’s trade remedies system, and provides for the detail to be set out in secondary legislation. The framework is intended to be compatible with the standards and requirements set out in the WTO Agreements, while also meeting Government’s commitments to creating a system that is impartial, proportionate, efficient and transparent. The framework is also very similar to the current EU rules, although changes have been made to ensure that it works for the UK.”
“Investigations shall, except in special circumstances, be concluded within one year, and in no case more than 18 months, after their initiation” (“the Time Limit”). The WTO panel has found that investigations that extend past the Time Limit are liable to be rendered invalid. In Morocco – Anti-Dumping Measures on Certain Hot-Rolled Steel from Turkey (18-6808;31 October 2018 ; WT/DS513/R), the investigation was extended by 22 days to take into account “interested parties’ requests for additional time for their submissions or additional meetings as well as the MDCCE’s need to review additional information that the respondents allegedly submitted ‘very late’ in the investigation.”
“We note that the panel in Mexico – Olive Oil clearly found that requests from interested parties during the investigation proceedings did not justify a delay beyond 18 months in concluding the investigation. We agree. In Mexico – Olive Oil, similar to the case at hand, the respondent had argued before the panel that the delay in concluding the investigation was justified by requests for extension from interested parties, and additional information that the investigating authority considered interested parties had submitted at allegedly “late” stages in the investigation. In our view, an investigating authority may consider such requests from interested parties as part of its due process obligations under Article 6 of the Anti-Dumping Agreement; however, as the Appellate Body has recognized, the investigating authority’s need to “‘control the conduct’ of its inquiry and to ‘carry out the multiple steps’ required to reach a timely completion” of the proceeding circumscribes its due process obligations. The Appellate Body noted, in particular, that Article 5.10 “requires” that investigations be completed in no more than 18 months, and that consonant with that requirement, Article 6.14 of the Anti-Dumping Agreement states that none of the procedures set out under Article 6 is intended “to prevent the authorities of a Member from proceeding expeditiously” in reaching their determinations. Therefore, we consider that an investigating authority must plan and conduct its investigation in such a way that it will conclude the investigation within the time limits set out in Article 5.10. In doing so, the investigating authority must, throughout the investigation, balance the interested parties’ due process interests with the need to control and expedite the investigating process. More specifically, an investigating authority has the obligation as Turkey argues, to balance the granting of requests for additional time with the strict obligation to conclude the investigation within the maximum time limit.””
“The Panel found that the term “interested parties known to the investigating authorities” in Article 12.1 covers not only the exporters known to the investigating authority, but also the exporters of which “it can reasonably obtain knowledge”
“249. We move now to Article 6.1 of the Anti-Dumping Agreement. Under this provision, “[a]ll interested parties in an anti-dumping investigation shall be given notice of the information which the authorities require”
“(10) The notice of initiation of proceedings shall announce the initiation of an investigation… It shall state the periods within which interested parties may make themselves known, present their views in writing and submit information if such views and information are to be taken into account during an investigation… (11) The Commission shall advise the exporters, importers and representative associations of importers or exporters known to it to be concerned, as well as representatives of the exporting country and the complainants, of the initiation of the proceedings…”
“It is apparent from the basic regulation, and in particular from Article 5(10) thereof, that, since the institutions are unable to identify all the undertakings which may be interested in an anti-dumping proceeding and thereby to determine to whom information the disclosure of which is permitted ought to be disclosed, it is for the interested parties to make themselves known and to state their interest in being informed and in participating in the investigation.”
“As the Council rightly pointed out in its written submissions, when an interested party makes itself known to the Commission after the prescribed time-limit, it must accept the procedure at the stage it is, and as it stands, at the time it joins it, and the Commission has a broad discretion as to the appropriateness of allowing that party to submit written and/or oral observations and of taking those observations into consideration. In particular, the Commission may refuse to take such observations into account if to do so would prolong unduly the procedure.”
“(1) Where the TRA has made a determination to initiate an investigation, it must set a period during which interested parties and any other person may make themselves known to the TRA (a “registration period”). (2) In a dumping investigation, the TRA must, as far as practicable, issue a questionnaire (see regulation 55) to— (a) all interested parties, other than the government of the relevant foreign country or territory, who have made themselves known to the TRA during the registration period; (b) all UK producers, importers and overseas exporters (or associations thereof) which the applicant UK industry has identified in their application; and (c) all contributors who have made themselves known to the TRA during the registration period.”
“Under paragraph 9(5)(e) of Schedule 4 of the 2018 Act, once the TRA has initiated an investigation, it “must ... notify the Secretary of State and interested parties accordingly.”
“(1) Where the TRA determines that an interested party has failed to cooperate with an investigation or has otherwise significantly impeded the progress of an investigation (a “non-cooperative party”), it may disregard the information supplied by that party. (2) For the purpose of paragraph (1), the TRA must not determine that an interested party is a non-cooperative party where it— (a) determines that that interested party has acted to the best of their ability to cooperate with an investigation; or(b) has accepted that compliance with any request for information to be supplied in a particular form would be unreasonably burdensome to that party.”
“(3) At any stage during a dumping or a subsidisation investigation, the TRA may make an affirmative determination, based on the evidence then before it, in relation to goods which are the subject of the investigation (referred to in this Schedule as “a provisional affirmative determination”). (4) But the TRA may only make such a determination if it is satisfied that interested parties (see paragraph 32(3)) have been given an adequate opportunity to provide information to it regarding the investigation.” c. §13(3), entitled “TRA’s duty to recommend requiring guarantees”, provides that where the TRA makes a PAD, it “may recommend” to the SSBT that, for a dumping investigation, all importers of the relevant goods: “should be required to give a guarantee in respect of any additional amount of import duty which would have been applicable, or potentially applicable, to the goods under section 13 if an anti-dumping amount had been applied to the goods based on the provisional affirmative determination (“an estimated anti-dumping amount”)”
“[it is] based on the country of dispatch of imports and not country of origin of imports”
“We can confirm there will be scope for your client to provide information … We will duly consider any information we receive ... although we cannot confirm at this time the precise weight that will be placed on this. This will depend on what information is provided, whether it is verifiable and our operational time constraints … as your client is not registered on our TRS system, it may send its submissions by email”
“The TRA has urgently reviewed Caterpillars concerns in relation to the conduct of both investigations and their request for an individual duty. The TRA has confirmed that there is insufficient time to calculate an individual duty for the business without breaching the 18-month WTO investigation timeframe. Breaching this would likely significantly increase the risk of a successful challenge at the WTO (by China) on any future definitive measures.The TRA publicised the initiation of both investigations widely in November 2023. This included a press notice, a social media campaign and notifications to the Chinese government to help identify Chinese producers. The business was not identified by the TRA from the outset because they export their excavators to an affiliate based in Switzerland before they are sold into the UK market. In March 2024, the TRA reached out to Caterpillar on both investigations, inviting them to participate, however Caterpillar did not do so. Having now identified Caterpillar as a Chinese producer, the TRA subsequently deemed Caterpillar as ‘non-cooperative’ due to their failure to engage - this means that they are subject to the residual non-cooperative proposed definitive 83.5% dumping duty and 79.07% subsidy amount.”
“Following receipt of your letters, I asked my officials to look into your concerns. The TRA acts as the UK’s independent body responsible for the conduct of trade remedies investigations, doing so in line with World Trade Organization (WTO) rules. As such, I cannot intervene in their investigations whilst they remain ongoing. Upon conclusion of the investigations, should the TRA recommend definitive measures it would be for me to take a decision on its recommendations. It is at this stage that I would consider the evidence within the investigations and relevant wider matters in the UK’s public interest. Whilst both are investigations continuing, I would urge you to engage the TRA. But I want to reassure you that the Department has acknowledged your concerns and will give due consideration to the matter at the conclusion of the investigation, should the TRA recommend that definitive measures be imposed.”
“The ruling in cases brought by JCB would affect non-Chinese companies importing into the UK - including Caterpillar. MW [Mr White] had put DP [Ms Peet] in touch with the lead official at TRA - but she had not made contact”
“It is accepted that the Caterpillar group had knowledge of the investigation from on or about 16 November [2023]. Caterpillar is not seeking to draw a distinction between knowledge of any members of the wider Caterpillar group and Caterpillar (Xuzhou) Ltd”
“While the TRA has not needed to formally designate Catrepillar [sic] as ‘non-cooperating’ under Reg 49 we note that manifestly it has failed to cooperate with the investigation. (Reg 49(1))”