Threat of Injury in Anti-dumping Investigations : Some Comments on the Current Practice at EU and WTO Level

The imposition of anti-dumping measures under the World Trade Organization (WTO) rules requires three main conditions: the existence of dumping, material injury and the nexus between dumped imports and the damage inflicted to the domestic industry. One of the three possible forms of material injury is threat of injury.The threat of injury claim represents a preventive mechanism that prompts the investigating authorities to act before actual material injury is inflicted on the domestic industry.The major difficulty in assessing a threat of injury claim resides in the prospective nature of the investigating authorities’ analysis. Since material injury has not yet occurred at the moment of the analysis, the investigating authorities must determine whether, based on the facts available, material injury is likely to occur in the near future. In order to prevent speculation and abuse, the WTO Anti-dumping Agreement sets forth the elements to be considered for the prospective assessment, such as an analysis based on evidence and facts, a clearly foreseen and imminent change in circumstances, and the economic factors relevant for the determination.The WTO case law adds to these rules, making it clear that the situation of the domestic industry prior to the initiation also plays a role in the prospective analysis. Nevertheless, important matters occurring in practice during anti-dumping investigations at European Union (EU) level remained currently unaddressed.The most significant is the choice of the reference period that stands as a basis for the investigating authority’s analysis, cumulation of imports from several countries in threat of injury investigations and calculation of the injury margin.This article aims at addressing these issues based on a recent anti-dumping investigation finalized in September 2009, Seamless Tubes, and scrutinizes whether the European Institutions’ approach in this case was in accordance with the WTO standards