The Call for Bilateral/Regional Trade Agreements and the Salient Features of the Anti-Dumping & Countervailing Duties Act, No. 2 of 2018 of Sri Lanka

COVID-19 has resulted in extraordinarily challenging times. The outbreak has disrupted the lives of people and is casting a heavy impact on the economies around the world by interrupting business operations and commercial activities. Whilst everyone is busy identifying various strategies from short term and medium to long term to overcome the recession, the future projects a blurry picture at least for the moment. A study group consisting of eminent persons recently submitted a report to the President containing recommendations aimed at steering Sri Lanka into a post-COVID-19 era of economic recovery. One of the recommendations was on Trade Agreements. The suggestion includes action to revive and accelerate the negotiation of a trade partnership agreement with China; an expanded agreement with India; an agreement with Thailand and with other Asian countries particularly other ASEAN members including Japan and to maximize the benefits from the Agreement already entered with Singapore.In this backdrop, the question arises as to whether the existing laws in Sri Lanka on Trade and Anti-Dumping are sufficient to protect the domestic traders and domestic industries against any possible unfair trading practices and the possibility of an unforeseen surge of imports which may arise with the signing of more Bilateral and Regional Trade Agreements. An attempt is made in this article to examine the key features and the effectiveness of the provisions of the legislation passed by the Parliament in 2018 on Anti-Dumping and to identify the protective measures that are sought to be introduced under the same.The Anti-Dumping & Countervailing Duties Act, No. 2 of 2018, and the Safeguard Measures Act, No. 3 of 2018 were certified by the Speaker of the Sri Lankan Parliament in March 2018. The enactment of these two laws was to remedy a need to answer the grievances of domestic producers and manufacturers. The official statement issued by the Ministry of Industry and Commerce on the occasion stipulates that Sri Lanka has taken a fairly long time to introduce the relevant legislation. This article proceeds to consider some of the salient features of the Anti-Dumping & Countervailing Duties Act, No. 2 of 2018 (the Anti-Dumping Act of 2018 Act) namely: (1) Part I of the Anti-Duping Act of 2018 on Anti-Dumping Duties, (2) the procedural steps in investigations under Part I on Anti-Dumping (3) Part II of the Anti-Duping Act of 2018 Act on Countervailing Duties, and (4) the procedural steps in investigations under Part II on Countervailing Duties.The Anti-Dumping Act of 2018 contains significant noteworthy features. Firstly, the act attempts to strike a balance between competing interests. The Right to Information on one hand and the economic value of sensitive trade-related information on the other. Secondly, the Act specifies timeframes for inquiries and related procedural steps recognizing the importance of resolving trade-related disputes in an effective, efficient, and efficacious manner. Thirdly the Act lays down a systematic procedure that ensures a fair opportunity be given to all parties with provision for public interest intervention. In terms of methodology, this article strictly adopts a doctrinal approach; doctrinal since the article proceeds to engage in an analysis of the law as it is on the four areas identified above. The enactment of these two laws will significantly improve the country’s standing in global trade and Sri Lanka will join the league of World Trade Organization - WTO members who keenly look to offset possible adverse impacts on their domestic industries from trade liberalization processes. The Gazette Notification making the Anti Dumping Law operable was issued on the 09th of October 2020 and the law is in force from 10 Oct 2020. The order by the Minister under section 01 was published in the Gazzetta Extraordinary No. 2197/4 – dated 12th October 2020. Both the laws on paper appear to be comprehensive. Yet the levels of effectiveness can be evaluated only when the Act stands the test of time. The reason/s for the delay in making the law operational is unclear. Section 84(1) of the Anti-Dumping Act authorizes the Minister to make regulations in respect of all matters required by the Act; the hold may be attributable to the formulation of the regulations. It may also be due to the setting up of infrastructure to facilitate the holding of inquiries, arming the officials with the necessary expertise for the successful implementation of the Act, or the contemplation of changes in policy and the introduction of further amendments to the already enacted laws. The effectiveness and/or whether the existing laws are sufficient to protect the domestic producers in the event of a surge of imports is debatable. The existing laws at the moment are not operational and the effectiveness is yet to stand the test of time. At the same time, the need to further consider strengthening the laws to protect domestic industries and producers whilst entering into more Trade Agreements cannot be undermined