I OVERVIEW OF TRADE REMEDIES

The modern trade system emerged from the ruins of the Second World War and was principally the creation of the United Kingdom and the United States. The Bretton Woods Conference (July 1944) created the International Monetary Fund and the World Bank, the Dumbarton Oaks Conference (August to October 1944) formulated the United Nations organisation and the Havana Conference (November 1947 to March 1948) fashioned the Havana Charter for an International Trade Organization (ITO).2

In 1947, the General Agreement on Tariffs and Trade (the GATT 1947) was negotiated as a stopgap measure. Though the GATT 1947 was drafted, the ITO was never created because of inaction on the part of the United States Congress. Since inception, the primary objective of GATT 1947 has been to reduce tariffs, enhance international trade and transparency.3 As tariff rates were lowered over time following the GATT 1947 agreement, member countries realised the need to reform the existing framework.4 From 1947 to 1994, the GATT contracting parties engaged in eight rounds of negotiations, the last of which was the Uruguay Round (1986–1994). The Uruguay Round agreements were signed in Marrakesh, Morocco on 15 April 1994 and on the same date the World Trade Organization (WTO) was born when the agreement establishing the WTO (the WTO Agreement) was signed.5

The WTO Agreement, inter alia, included the GATT 1994 as an integral part, which is binding on all members.6 The GATT 1994, in turn, encompassed the provisions of the GATT 1947, as well as the provisions of the legal instruments in force under the GATT 1947.7

One of the cardinal principles of the GATT 1994 and the WTO is the most-favoured-nation (MFN) treatment.8 MFN means that each member nation is required to apply tariffs equally to all trading partners. Where, on one hand, the GATT and WTO regimes mandate equal treatment and non-discrimination, on the other, the WTO Agreement provides exceptions by allowing use of trade remedy instruments9, among others, namely:

  1. anti-dumping measures targeted against unfair-priced imports;
  2. subsidy or countervailing measures targeted to offset subsidy given by exporting governments; and
  3. emergency safeguard measures adopted to combat unforeseen surges in imports.

Pursuant to the GATT 1994, detailed guidelines have been prescribed under the specific agreements that have also been incorporated in the national legislation of the member countries of the WTO. Indian laws were amended with effect from 1 January 1995 by introducing a procedural framework for initiation and conduct of trade remedial investigation, the imposition of measure and judicial review. From 1995 to 2017, India initiated 888 anti-dumping investigations, the highest number among the member states.10 In 2017 alone, India initiated 49 anti-dumping investigations and imposed measures in 47 investigations.11 As at March 2019, anti-dumping measures on 139 products from multiple countries and countervailing duty measures on two products were in force.12 To enhance the accessibility of trade remedial measures to the domestic industry, the Indian government merged investigating agencies conducting anti-dumping, countervailing duties and safeguard investigation under one umbrella institution, the Directorate General of Trade Remedies.13

II LEGAL FRAMEWORK

i Anti-dumping measures

Under international law, anti-dumping measures are regulated by Article VI of the GATT and the Agreement on Implementation of Article VI of the GATT 1994 (the Anti-Dumping Agreement). Anti-dumping laws allow a country to impose temporary duties on goods exported by a foreign producer when the export price of such goods is less than the normal value of 'like articles' sold in the exporter's domestic market and is causing injury to the domestic producers.

In India, anti-dumping actions are governed by Sections 9A, 9AA, 9B and 9C of the Customs Tariff Act, 1975 (the Act) and Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (the Anti-dumping Rules) as amended from time to time.

The government agency entrusted with the determination of dumping and injury is the Designated Authority (DA), Directorate General of Trade Remedies, Ministry of Commerce and Industry.14 However, the DA only conducts trade remedial investigations and recommends anti-dumping duties.15 The actual responsibility for imposition and collection of duties lies with the Ministry of Finance.16

India's domestic law envisages that where any article is exported17 from any country or territory to India at less than its normal value,18 then, upon the importation of such an article into India, the Indian government, through the Ministry of Finance, may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping19 in relation to such an article.20

Since dumping per se is not actionable, there is a further requirement to establish that there exists a causal link between dumped imports and injury caused to the domestic industry. The injury margin is arrived at by calculating the difference between the non-injurious price21 and the landed cost of the imported product.22 India follows the WTO's lesser duty rule;23 that is, the Indian government imposes anti-dumping duty equal to the margin of dumping or margin of injury, whichever is lower.24

Anti-dumping duty ceases to have effect on the expiry of five years from the date of its imposition unless revoked earlier. However, if the DA, in a review, is of the opinion that the cessation of such a duty is likely to lead to continuation or recurrence of dumping and injury, it may from time to time extend the period of such an imposition for a further period of five years (known as a 'sunset review').25 During the five-year period, the DA may carry out a 'changed circumstances'26 review, which is called a 'midterm review'.27

India also allows 'new shipper' reviews. In such a review, any exporter who has not exported the product to India during the period of investigation may request a determination of individual dumping duty. However, a new shipper review is only permissible if the applying exporter is not related to an exporter or producer in the exporting country who is subject to the anti-dumping duties.28

The recommendation and imposition of anti-dumping duty is appealable to a specialised tribunal, the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), constituted under Section 129 of the Customs Act 1962.29

ii Subsidies and countervailing measures

Article XVI of the GATT 1994 and the Agreement on Subsidies and Countervailing Measures (ASCM) deal with the regulation of subsidies and the use of countervailing measures to offset the injury caused by subsidised imports. Pursuant to the ASCM, a subsidy is deemed to exist if there is a financial contribution by a government or any public body within the territory of a member or there is a form of price support and a benefit is thereby conferred.30

In India, countervailing actions are governed by Sections 9, 9B and 9C of the Act. In 1995, the Customs Tariff (Identification, Assessment and Collection of Countervailing Duty on Subsidised Articles and for Determination of Injury) Rules, 1995 (the Countervailing Rules) were enacted to determine the manner in which the subsidised articles liable for countervailing duty are to be identified, the manner in which subsidy provided is to be determined and the manner in which the duty is to be collected and assessed under the Act.

As with anti-dumping, the DA conducts countervailing investigations and recommends duties pursuant to the provisions given under the Act and the Countervailing Rules.31 The responsibility for the imposition and collection of duties as recommended by the DA lies with the Ministry of Finance.

Indian law on countervailing measures is similar to the ASCM and provides that where any country or territory pays, bestows – directly or indirectly – any subsidy32 upon the manufacture or production therein or the exportation therefrom of any article, including any subsidy on transportation of such an article, then, upon the importation of any such article into India, whether the same is imported directly from the country of manufacture, production or otherwise, and whether it is imported in the same condition as when exported from the country of manufacture or production or has been changed in condition by manufacture, production or otherwise, the central government may, by notification in the Official Gazette, impose a countervailing duty not exceeding the amount of such a subsidy.33

The DA in determining the subsidy shall ascertain whether it:34

  1. relates to export performance;
  2. relates to the use of domestic goods over imported goods in the export article; or
  3. has been conferred on a limited number of persons engaged in manufacturing, producing or exporting the article unless such a subsidy is for:
    • research activities conducted by or on behalf of persons engaged in the manufacture, production or export;
    • assistance to disadvantaged regions within the territory of the exporting country; or
    • assistance to promote adaptation of existing facilities to new environmental requirements.

As with anti-dumping practices, the DA is required to assess and accord a finding that the import of a subsidised article into India causes or threatens to cause material injury to the domestic industry. The principles for the determination of injury are set out in Rule 13 read with Annexure I of the Countervailing Rules. Rule 12 read with Annexure IV of the Countervailing Rules provides for the calculation of the amount of countervailable subsidies. However, in a scenario where an article subject to countervailing duty already attracts an anti-dumping duty, a countervailing duty for the amount equivalent to the difference between the quantum of countervailing duty and the anti-dumping duty payable may be imposed by the government.

The countervailing duty ceases to have effect on the expiry of five years from the date of its imposition, unless revoked earlier. However, if the central government, in a review, is of the opinion that the cessation of such a duty is likely to lead to continuation or recurrence of subsidisation and injury, it may, from time to time, extend the period of such an imposition for a further period of five years.35 An appeal against the order of determination or DA review regarding the existence, degree and effect of subsidy in relation to the import of any article is made to CESTAT.36

iii Safeguard measures

Article XIX of the GATT 1994 read with the Agreement on Safeguards (AOS) provides the ground rules for safeguard actions. According to the AOS, a member may apply safeguard measures to a product if the member has determined that it is being imported into its territory in such increased quantities, absolute or relative to domestic production, as to cause serious injury to the domestic industry that produces identicial or similar, or directly competitive products.37 Article 9 of the AOS provides for a special and differential treatment for developing countries.

The national legislation to implement the provisions of AOS has been enacted under Section 8B of the Act. The Customs Tariff (Identification and Assessment of Safeguard Duty) Rules, 1997 (the Safeguard Rules) govern the procedural aspects. Further, Section 8C of the Act and the Customs Tariff (Transitional Products Specific Safeguard Duty) Rules, 2002 have been specifically enacted for imposing safeguard duty on any article imported into India from China in such increased quantities and under such conditions as to cause market disruption to the domestic industry.

The safeguard duty investigations were earlier conducted by the Directorate General of Safeguards (DGS) of the Department of Revenue, Ministry of Finance. Post-2018, the safeguard investigations are conducted under the aegis of the DA, the Directorate General of Trade Remedies (DGTR).

Similar to the provisions of the AOS, Indian law provides that if the central government, after conducting an enquiry, is satisfied that any article is imported into India in such increased quantities and under such conditions as to cause or threaten to cause serious injury to domestic industry, then it may, by notification in the Official Gazette, impose a safeguard duty on that article.38 It may be noted that any safeguard duty imposed under the Safeguard Rules shall be on a non-discriminatory basis and applicable to all imports of such an article irrespective of its source.39

The safeguard duty ceases to have effect on the expiry of four years from the date of its imposition unless revoked earlier.40 The DA also conducts a review of the need for continuance of safeguard duty.41 In no case shall the safeguard duty continue to be imposed beyond a period of 10 years from the date on which it was first imposed.42 If the duty so recommended is for more than a year, the DA is to recommend progressive liberalisation adequate to facilitate positive adjustment.43

III TREATY FRAMEWORK

Free trade agreements (FTAs) are arrangements between two or more countries or trading blocs that primarily agree to reduce or eliminate customs tariff and non-tariff barriers on substantial trade between them.44 Formation of FTAs is one of the permitted exceptions to the MFN principle. Like other countries, India too has entered into FTAs and preferential trade agreements (PTAs).45 India is also involved in other formats of bilateral and pluralistic partnerships such as comprehensive economic cooperation agreements (CECAs), comprehensive economic partnership agreements (CEPAs)46 and regional trade agreements (RTAs).

India views RTAs and PTAs as 'building blocks' towards achieving the overall objective of trade liberalisation. India's initial foray into RTAs was through the Bangkok Agreement (1975), the Global System of Trade Preferences (GSTP, 1988) and the SAARC PTA (SAPTA, 1993). India has built on these initiatives to engage with countries and regional blocs around the globe.47

It is known that FTAs and RTAs through their preferential tariffs accelerate trade among nations. However, to combat a surge of such imports (including low-prices imports) most bilateral treaties preserve the right of members to invoke trade remedy measures. Noted examples are (1) the ASEAN Agreement on Trade in Goods, which permits a member's use of safeguards under the AOS, and (2) the CECA between India and Singapore, which permits the use of subsidy and anti-dumping measures. Some of the bilateral agreements entered by India also call for strict compliance with the WTO Agreement and incorporate WTO-plus obligations. One such MOU was signed between India and Iran in 2018, mandating mutual cooperation in trade remedial measures and sharing of data before initiation of the investigation.48

India is also actively involved in negotiating a number of new agreements, such as:

  1. Regional Comprehensive Economic Partnership (RCEP);
  2. Framework Agreement with Mercosur;
  3. India–EU Bilateral Trade and Investment Agreement;
  4. Australia–New Zealand CEPA;
  5. India–Canada CEPA;
  6. India–Israel FTA;
  7. Eurasian Economic Union (including Russia);
  8. Expended PTA with Chile; and
  9. India–Peru FTA.

India has also initiated a review of (1) India–ASEAN Agreements and (2) India–Sri Lanka FTA to negotiate the India–Sri Lanka Economic and Technology Cooperation Agreement. At the time of writing, India is actively negotiating an e-commerce chapter in the RCEP agreement.

IV RECENT CHANGES TO THE REGIME

Recently, the DGTR has taken multiple steps to enhance transparency, uniformity and fairness in the investigation process. The government has introduced a Manual of Operating Practice for Trade Remedy Investigation and Handbook of Operating Procedures of Trade Defence Wing. The Manual of Operating Practice for Trade Remedy Investigation enlists step-by-step instructions to be implemented while conducting trade remedial investigations. The Handbook of Operating Procedures of Trade Defence Wing on the other hand encapsulates the role of the government by providing institutional support to Indian exporters in investigations conducted by other WTO members against India.

The most significant and recent change in the anti-dumping investigations in India was the introduction of a new set of questionnaires to be filed by the supporting Indian producers participating in the investigation (supporter's questionnaire). The main objective of the supporter's questionnaire is to undertake meaningful examination of injury and to avoid skewed injury analysis based on selective data furnished by a few domestic producers. The supporter's questionnaire overcomes this hurdle and accounts for the information furnished by supporting producers at the time of final determination.49

The Indian government is also aiming to reform the legal framework of trade remedial investigation. As a first step, the DA has published a 'stakeholders' consultation', which invites input from the industry with an aim to amend Anti-Dumping, Anti-Subsidy and Safeguard Duty Rules by 2019–2020.50

V SIGNIFICANT LEGAL AND PRACTICAL DEVELOPMENTS

As stated above, DA determination orders and Ministry of Finance imposition orders are statutorily appealable to the CESTAT on merits. However, the determination or imposition orders are also amenable to judicial review by the Tribunals, High Courts and the Supreme Court of India (India's highest court).

The Supreme Court of India in a 2005 case, Reliance Industries Limited v. Designated Authority and others,51 came to the conclusion that the nature of proceedings before the DA is quasi-judicial, and that it is well settled that a quasi-judicial decision must be in accordance with the principles of natural justice and hence reasons have to be disclosed by the DA in its decision. In 2011, in the case of Automotive Tyre Manufacturers Association v. Designated Authority and others,52 the Supreme Court of India declared that the DA is obliged to adhere to the principles of natural justice in the exercise of power conferred on it under the rules. The Supreme Court of India further declared that when an investigation and public hearing is carried out by one DA and the final findings or order is issued by a successor DA (the new DA), such final findings offend the basic principles of natural justice. Pursuant to this judgment, the departmental practice that has now emerged is that, when a particular DA is transferred or vacates office, all cases are required to be reheard in such a manner that the DA who hears the case is the one who renders the final findings.

In 2016, the Supreme Court in the case of Commissioner of Customs, Bangalore v. M/s GM Exports and Others53 reiterated that India, as a signatory to the WTO, must adhere to its international obligations and held that the domestic legislation must be interpreted in line with the Anti-Dumping Agreement. In 2018, the Delhi High Court in the case of Forech India Ltd and Others v. Designated Authority and Others54 held that in the case of an expiry review, the anti-dumping duty can only be extended without break (i.e., before the expiry of existing duty levied in the earlier investigation). The said decision of the High Court has been challenged before the Supreme Court and the final conclusive judgment on the issue is awaited.

Recently, the High Court of Madras in the case of Saint Gobain India Private Limited v. Union of India and Others55 detailed the importance of statutory timelines and set aside the investigation concluded by the DA after an 18-month timeline. The Court in this judgment emphasised the Anti-Dumping Agreement and clarified that the new shipper review should be conducted by the DA on an expedited basis.

VI TRADE DISPUTES

Settling international trade disputes between the member states is the responsibility of the WTO's Dispute Settlement Body (DSB). This body consists of all the WTO members. The DSB has the sole authority to establish 'panels' of experts to consider cases and accept or reject the panel's findings or the results of an appeal. Either side can appeal a panel's ruling. Sometimes both sides do so. Appeals have to be based on points of law such as legal interpretation – they cannot re-examine existing evidence or examine new issues.56

India has been an active participant before the DSB and has to date raised 25 disputes as a complainant. India has also faced the brunt of 30 cases that other member nations have filed against India. In 159 disputes, India acted as a third party.57 Out of the 25 WTO disputes filed by India, three disputes are at an advanced stage.

i Trade remedy disputes filed by India

In the WTO case known as US-Carbon Steel (India),58 the DSB adopted the Appellate Body Report circulated in 2014. Since the dispute was adjudicated in favour of India, the United States claimed to have implemented the ruling of the dispute by issuing revised final determination. In 2017, India requested the DSB to evaluate the claim of compliance by the US and issuance of compliance report. In 2018, Chair of the Compliance Panel informed the DSB to issue the report in 2019, which is awaited.59

On 9 September 2016, in a dispute titled US-Renewable Energy,60 India requested consultations with the United States regarding domestic content requirements and other subsidies instituted by the governments of the states of Washington, California, Montana, Massachusetts, Connecticut, Michigan, Delaware and Minnesota, in the energy sector. India claimed that the measures resulted in violation of:

  1. Articles III:4, XVI:1 and XVI:4 of the GATT 1994;
  2. Article 2.1 of the TRIMS Agreement; and
  3. Articles 3.1(b), 3.2, 5(a), 5(c), 6.3(a), 6.3(c) and 25 of the ASCM.

The Report of the Panel was issued on 27 June 2019,61 which found that the measures in dispute were inconsistent with the United States' obligations under Article III:4 of the GATT, as they provided an advantage for the use of domestic products, which amounted to a less favourable treatment for similar or identical imported products.

Most recently, the US imposed 25 per cent and 10 per cent of additional import duty on certain steel products and aluminium products from all countries except Canada, Mexico, Australia, Argentina, South Korea,62 Brazil and those in the European Union. Against the imposition of additional import duty, India filed a dispute titled US – Steel and Aluminium Products and requested the WTO for the establishment of a panel. Since the selective levy of additional duty distorts international trade, eight other WTO members, namely Canada, China, the EU, Mexico, Norway, Russia, Switzerland and Turkey, have also filed disputes against the United States. On January 2019, the Director General constituted a panel to adjudicate the dispute.63

ii Trade remedy disputes against India

The WTO trade remedy case known as India – Export Related Measures64 is likely to have a significant impact on the overall export potential. In this dispute, the United States challenged the numerous programmes applicable to an array of products. The dispute is currently at Panel stage and the US has alleged that the following programmes65 are in contravention of the ASCM:

  1. Export Oriented Units Scheme and sector-specific schemes, including Electronics Hardware Technology Parks Scheme;
  2. Merchandise Exports from India Scheme;
  3. Export Promotion Capital Goods Scheme;
  4. Special Economic Zones; and
  5. Duty-Free Imports for Exporters Programme.

Brazil, Canada, China, Egypt, the EU, Japan, Kazakhstan, Korea, Russia, Sri Lanka, Taiwan and Thailand reserved their rights as third parties.66 This dispute is of substantial importance as the alleged programmes are prominently used by a large number of exporters. In the wake of this dispute, the government of India has already taken various steps for replacement or streamlining alleged subsidy programme.

In 2019, Brazil (DS-579), Australia (DS-580) and Guatemala (DS-581) filed disputes before the WTO against domestic support subsidies and export subsidy granted by India to sugar and sugarcane industry.67 In these disputes, WTO members claimed various measures to be in violation of the Agreement on Agriculture and ASCM. Broadly classified, alleged measure covers:

  1. domestic support by the government of India in the form of a mandatory minimum set price;
  2. mandatory minimum set price by nine state governments; and
  3. financial assistance by government of India and various state governments contingent upon export performance.

Although the dispute is currently at the consultation stage, various other WTO members have raised concerns over the measures. Member countries highlighted that India has substantially increased domestic support adversely impacting the competitiveness of other exporting WTO members. More specifically, Guatemala has cited the Press Release of the Cabinet Committee on Economic Affairs and claimed that India has provided export subsidy in tune of 4,000 rupees per ton (approximately 21 per cent of the world raw sugar price).68

VII OUTLOOK

In the recent past, global trade has witnessed a pragmatic shift and resulted in enormous trade disputes. In 2018, the United States imposed tariffs on multiple products imported from China, the EU, India and other WTO members. In response, China imposed retaliatory tariffs. Since the escalation of tariffs resulted in an adverse impact, the United States and China are working towards arriving at a trade deal. In 2019, India withdrew Pakistan's MFN status and imposed higher tariffs, aiming to counter terrorism. Most recently, the US withdrew duty-free benefits to India under the Generalized System of Preferences, resulting in enhancement of tariffs on goods exported from India. One week later, India imposed retaliatory tariffs on numerous products imported from the United States.

Keeping into consideration the number of trade disputes, India is likely to revamp the Foreign Trade Policy and renegotiate with the United States for reinstatement of benefits under the Generalized System of Preferences. Continued imbalance in global trade will also act as a decisive factor for India in the ongoing negotiation of various trade agreements including the RCEP. Looking forward, on account of slowdown in global trade, key industry sectors in India, including the iron and steel industry, are also likely to witness a surge in imports, resulting in multiple trade remedial investigations.


Footnotes

1 Shiraz Rajiv Patodia is a senior partner and Ashish Singh is a partner at Dua Associates. The authors thank Mayank Singhal and Juhi Chawla of Dua Associates for their research and scholastic contribution.

2 Craig VanGrasstek, The History and Future of the World Trade Organization, Chapter 2.

3 Preamble of GATT 1947.

4 The Tokyo Round negotiations (1973–1979) developed agreements on anti-dumping measures, government procurement, technical barriers to trade and other non-tariff measures.

5 Article 1 of the Marrakesh Agreement establishing the World Trade Organization.

6 Article II.2 of the WTO Agreement.

7 For instance, Article VI of GATT 1947 provides general guidance on the framework and implementation of trade remedial measures. Consequently, GATT 1947 member countries codified the Anti-Dumping Agreement and the Agreement on Subsidy and Countervailing Measures.

8 Article I of the GATT 1947.

9 Agreement on Implementation of Article VI of the GATT 1994, Agreement on Subsidies and Countervailing Measures and Agreement on Safeguards provides framework of trade remedial measures permissible under the WTO.

10 Anti-dumping Initiations: By Reporting Member 01/01/1995 – 31/12/2017 available at www.wto.org/english/tratop_e/adp_e/AD_InitiationsByRepMem.pdf.

11 Anti-dumping Measures: By Reporting Member 01/01/1995-31/12/2017 available at www.wto.org/english/tratop_e/adp_e/AD_MeasuresByRepMem.pdf.

12 DGTR Annual Report for the year 2018–19 available at www.dgtr.gov.in/publications.

13 Earlier, anti-dumping and anti-subsidy investigations were conducted by the Designated Authority, Directorate General of Anti-dumping, Ministry of Commerce and Industry. Safeguard investigations were earlier conducted by Directorate General (Safeguards). Pursuant to the merger of investigating agencies, all trade remedial investigations are being conducted by the Designated Authority, the Directorate General of Trade Remedies (DGTR). Press release by the government of India dated 9 May 2018 is available at
http://pib.nic.in/newsite/PrintRelease.aspx?relid=179195.

14 Rule 3 of the Anti-dumping Rules.

15 Rule 17 of the Anti-dumping Rules.

16 Rule 18 of CVD Rules.

17 The Act defines export price as the price of an article exported from the exporting country to India. In certain circumstances, when such price is considered unreliable, export price of the article may be determined on other reasonable basis. Refer, Explanation (b) to Section 9A(1) of the Act.

18 The normal value is the comparable price at which the goods under investigation are sold, in the ordinary course of trade, in the domestic market of the exporting country. Refer, Explanation (c) to Section 9A(1) of the Act.

19 'Margin of dumping' is defined in Explanation (a) to Section 9A(1) of the Act: 'margin of dumping', in relation to an article, means the difference between its export price and its normal value.

20 Section 9A of the Act. The principles for the determination of normal value and export price and margin of dumping are enshrined in terms of Annexure I of the Anti-dumping Rules.

21 Also known as the fair selling notional price.

22 Annexure II of the Anti-dumping Rules set out the principles for the determination of injury and Annexure III for determination of non-injurious price.

23 Article 9.1 of the Anti-Dumping Agreement.

24 Rule 4(d)(i) of the Anti-dumping Rules.

25 Section 9A (5) of the Act read with Rule 23 of the Anti-dumping Rules, Notification No. 15/2011 Customs (NT) dated 1 March 2011 and Trade Notice 1/2008 dated 10 March 2008 (Department of Commerce).

26 Trade remedial investigations are often based on market conditions during a defined timeline, which are subject to change over time. To align such measures with the evolving market, Rule 23 of the Anti-dumping Rules allows the Designated Authority to modify the existing duty owing to a change in the market situation. Such changes may arise on account of variation in normal value, export price of goods and landed value of imports in India, etc.

27 Section 9A(5) of the Act read with Rule 23 of the Anti-dumping Rules and Notification No. 15/2011 Customs (NT) dated 1 March 2011 and Trade Notification 1/2010 (Department of Commerce).

28 Rule 22 of the Anti-dumping Rules.

29 Section 9C of the Act.

30 Article 1.1 of the ASCM.

31 Rule 4 of the Countervailing Rules.

32 Refer to Explanation to Section 9 of the Act.

33 Section 9 of the Act.

34 Rule 11 of Countervailing Rules.

35 Section 9(6) of the Act read with Rule 4 of the Countervailing Rules.

36 Section 9C of the Act.

37 Article 2, AOS.

38 Section 8B of the Act.

39 Rule 13 of the Safeguard Rules.

40 Section 8B(4) of the Act.

41 Rule 18 of the Safeguard Rules.

42 Section 8B(4) of the Act read with Rule 16 of the Safeguard Rules.

43 Rule 4 read with Rule 17 of the Safeguard Rules.

44 Free Trade Agreements Frequently Asked Questions (FAQs) available at http://commerce.nic.in/trade/FAQ_on_FTA_9April2014.pdf?id=9&trade=i.

45 In a PTA, two or more partners agree to reductions on an agreed number of tariff lines. The difference between a PTA and a FTA is that in the former there is a positive list of products, on which duty is to be reduced, while in the latter there is a negative list, on which duty is not reduced or eliminated. (Source: Free Trade Agreements Frequently Asked Questions (FAQs) available at: https://commerce.gov.in/writereaddata/trade/FAQ_on_FTA_9April2014.pdf?id=9&trade=i&id=9&trade=i.

46 The CECA and the CEPA are agreements that consist of integrated packages on goods, services and investment, along with other areas including intellectual property rights and competition.

47 Paragraph 6.2, Trade Policy Review, Report by India dated 28 April 2015.

48 Press Information Bureau Release dated 17 February 2019. MOU is available at www.mea.gov.in/Portal/LegalTreatiesDoc/IR18B3496.pdf.

49 Trade Notice No. 13/2018 dated 27 September 2018, issued by the DA.

50 Report of Director General published in DGTR Annual Report, 2018–19.

51 (2006) 10 SCC 368.

52 (2011) 2 SCC 258.

53 2015 (324) ELT 209 (SC).

54 (2018) 361 ELT 671.

55 Judgment dated 14 November 2018, by the High Court of Madras in Writ Appeal Nos. 412 to 414 of 2018.

58 WTO Dispute titled United States – Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat Products from India (DS-436).

59 Communication from the Panel dated 3 September 2018 in DS-436.

60 WTO Dispute titled United States – Certain Measures Relating to the Renewable Energy Sector (DS-510).

62 Only imports of steel, and not those of aluminium, from South Korea have been exempted from the measures at issue by the United States.

64 WTO Dispute titled United States – Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat Products from India (DS-436).

65 Request for consultation by United States dated 19 March 2018 and details available on USTR website. https://ustr.gov/issue-areas/enforcement/dispute-settlement-proceedings/wto-dispute-settlement/pending-wto-dispute-39.

68 Page 19 of Guatemala request for a consultation with India dated 25 March filed before the WTO's dispute settlement body.