Legalized Backsliding : The Product Under Consideration in the WTO Anti-Dumping Agreement

The scope of “product under consideration” (hereinafter “PUC”) is the basis for conducting an anti-dumping investigation. However, the World Trade Organization (hereinafter “WTO”) Anti-Dumping Agreement does not provide any explicit details about this definition; the result is that many issues remain in legal limbo. This study aims to reveal the legal and politico-economic problems arising from the ambiguity of the PUC definition, suggesting alternatives for its amendment. To this end, we conduct analyses of the cases of EC — Fasteners and EU — Footwear. Our legal analyses reveal that both the “internal likeness” claim and the “cross-likeness” claim would be rejected by the Panel. Our politico economic analyses highlight that the WTO Anti-Dumping Agreement acts as a form of “legalized backsliding” which allows investigating authorities to abuse their broad discretion to satisfy protection-seeking interest parties in determining the scope of PUCs. This study recommends either inserting substantive and procedural provisions to determine PUCs in the Anti-Dumping Agreement as the best option or inserting them in Free Trade Agreements as the second-best option