The International Trade Law Review: India

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. Although the GATT 1947 was drafted, the ITO was never created because of inaction on the part of the US 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. 'National treatment', which is another core principle of the GATT 1994, prohibits discrimination between imported and domestically produced goods with respect to internal taxation or other government regulation.9 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 instruments10, 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 investigations, the imposition of measure and judicial review.11 The Directorate General of Trade Remedies (DGTR) of the Ministry of Commerce and Industry, chaired by the Designated Authority (DA), conducts all trade remedial investigations in India.12 From 1995 to 2020, India initiated 1,071 anti-dumping investigations, followed by the United States with 817 investigations. From January 2020 to December 2020, WTO member countries initiated 349 anti-dumping investigations, the highest number so far.13 Overall, from 1995 to 2020, China was subjected to 1,069 anti-dumping measures, followed by South Korea with 301 measures.14 In the same period, WTO member countries initiated a total of 632 countervailing duty investigations; the majority of these (290) were initiated by the United States, followed by the European Union (89) and Canada (76).15 India has initiated 28 countervailing duty investigations, most of which have occurred in the past three years and are predominantly against China, Vietnam, Malaysia, Thailand and other Asian countries.16 India has imposed safeguard measures in one investigation concerning imports of solar cells and modules.17

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 the 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 the 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 DA and the DGTR.18 However, the DA only conducts trade remedial investigations and recommends anti-dumping duties.19 The actual responsibility for imposition and collection of duties lies with the Ministry of Finance.20

India's domestic law envisages that where any article is exported21 from any country or territory to India at less than its normal value,22 upon the importation of the 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 dumping23 in relation to the article.24

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.25 The injury margin is arrived at by calculating the difference between the non-injurious price26 and the landed cost of the imported product.27 India follows the WTO's lesser duty rule;28 that is, the Indian government imposes anti-dumping duty to the extent of the margin of dumping or margin of injury, whichever is lower.29 The Indian government (through the Ministry of Finance) has the discretion not to implement the DA's recommendations on levying duty, in which case the findings automatically become infructuous and hold no legal authority.

The DA usually recommends a duty for a maximum period 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 the duty is likely to lead to continuation or recurrence of dumping and injury, it may from time to time extend the period of imposition for a further five years (known as a 'sunset review').30 During the five-year period, the DA may carry out a 'changed circumstances' review, which is also called a 'midterm review'.31

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.32 To prevent evasion of anti-dumping duty, the DA also undertakes anti-circumvention investigations with a view to extending the scope of duty levied in a previous investigation.33

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 1962.34

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.35

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.36 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 or bestows (directly or indirectly) any subsidy37 upon the manufacture or production therein or the exportation therefrom of articles of any kind, including any subsidy on transportation of the articles, then, upon the importation of such articles into India, whether imported directly from the country of manufacture, production or otherwise, and whether imported in the same condition as when exported from the country of manufacture or production or 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 the subsidy.38

The DA in determining the subsidy shall ascertain whether it:39

  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 the subsidy is for:
  4. research activities conducted by or on behalf of persons engaged in the manufacture, production or export;
  5. assistance to disadvantaged regions within the territory of the exporting country; or
  6. 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 the duty is likely to lead to continuation or recurrence of subsidisation and injury, it may, from time to time, extend the period of imposition for a further five years.40 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.41

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 identical or similar, or directly competitive products.42 Article 9 of the AOS provides for a special and differential treatment for developing countries.

The national legislation to implement the provisions of the 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. Except in relation to China, the India–Korea Comprehensive Economic Partnership Agreement (Bilateral Safeguard Measures) Rules 201743 and the India–Japan Comprehensive Economic Partnership Agreement (Bilateral Safeguard Measures) Rules 201744 also allow safeguard measures in the form of quantitative restrictions to control surges in imports from Korea causing serious injury to domestic producers of like or directly competitive products in India.

Safeguard duty investigations were previously conducted by the Directorate General (Safeguards) of the Department of Revenue of the Ministry of Finance. Post-2018, safeguard investigations are conducted under the aegis of the DA of the DGTR.

Similarly 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.45 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.46

The safeguard duty ceases to have effect on the expiry of four years from the date of its imposition unless revoked earlier.47 The DA also conducts a review of the need for continuance of safeguard duty.48 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.49 If the duty so recommended is for more than a year, the DA is to recommend progressive liberalisation adequate to facilitate positive adjustment.50

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.51 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).52 India is also involved in other formats of bilateral and pluralistic partnerships such as comprehensive economic cooperation agreements (CECAs), comprehensive economic partnership agreements (CEPAs)53 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.54

It is known that FTAs and RTAs through their preferential tariffs accelerate trade among nations. However, to combat surges of imports (including low-price imports) most bilateral treaties preserve the right of members to invoke trade remedy measures. Noted examples are (1) the Association of Southeast Asian Nations (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 into by India also call for strict compliance with the WTO Agreement and incorporate WTO-plus obligations. A memorandum of understanding to this effect was signed between India and Iran in 2018, mandating mutual cooperation in trade remedial measures and sharing of data before initiation of investigations.55

India is also actively involved in negotiating a number of agreements,56 including:

  1. the ASEAN–India FTA;
  2. the India–Thailand CECA;
  3. the Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation FTA;
  4. the India–Gulf Cooperation Council FTA;
  5. the India–South African Customs Union PTA;
  6. the Second Review of the India–Singapore CECA;
  7. the Expansion of India–Chile PTA;
  8. the India–Mercosur PTA;
  9. the India–European Union Broad Based Trade and Investment Agreement;
  10. the Asia-Pacific Trade Agreement;
  11. the India–New Zealand FTA CECA;
  12. the India–Canada CEPA;
  13. the India–Australia CECA;
  14. the India–Indonesia CECA;
  15. the Joint Study on the India–Common Market for East and Southern Africa Joint Study Group Report to examine the feasibility of a PTA FTA; and
  16. the India–Israel FTA.

In November 2019, the government took a decisive step to withdraw from the Regional Comprehensive Economic Partnership (RCEP). This decision to opt out of the RCEP was based on the understanding that the treaty's structure did not address outstanding issues and key concerns for India.57 On 15 November 2020, 15 member countries, namely the 10 ASEAN member states and Australia, China, Japan, New Zealand and South Korea, signed the RCEP after eight years of negotiations.

Although trade negotiations were marred by the covid-19 pandemic, India and Mauritius signed a comprehensive economic cooperation and partnership agreement (CECPA) on 22 February 2021.58 One of the unique features of the India–Mauritius CECPA is its automatic trigger safeguard mechanism (ATSM), wherein both countries may impose a safeguard duty (once duties are eliminated or reduced) on imports of highly sensitive products after reaching a certain threshold.59 In accordance with the CECPA, the ATSM will be negotiated within two years of the date of the agreement. If negotiations are not concluded within two years, a default ATSM will apply.60

Recent changes to the regime

Over the past few years, the DGTR has taken multiple steps to enhance transparency, uniformity and fairness in the investigation process. The government introduced a Manual of Operating Practices for Trade Remedy Investigations and a Handbook of Operating Procedures of Trade Defence Wing. The Manual of Operating Practices for Trade Remedy Investigations lists step-by-step instructions to be implemented while conducting trade remedial investigations, whereas the Handbook of Operating Procedures of Trade Defence Wing outlines the role of the government in providing institutional support to Indian exporters in investigations conducted by other WTO members against India. The Supreme Court of India recognised the Manual of Operating Practices for Trade Remedy Investigations in a judgment in 2020.61

The most significant change regarding anti-dumping investigations in India was the amendment to the Anti-dumping Rules in 2020 whereby the scope of a 'related entity' for the determination of a domestic industry was expanded (Article 4 of the Anti-Dumping Agreement). Additionally, the central government defined the length of an investigation, introduced a legal framework for determining the duty for new shippers if the DGTR opts for sampling in the original investigation and amended provisions for anti-circumvention investigations and anti-cumulative assessments.62

The central government also introduced anti-absorption provisions in respect of anti-dumping and countervailing duty investigations through amendments to Sections 9 and 9A of the Customs Tariff Act 1975 by the Finance Bill 2021. Based on the same, the DA proposes to introduce anti-absorption rules in respect of anti-dumping and countervailing duty measures. As a first step, the DA has published a 'stakeholders' consultation, which invites input from the industry with a view to give effect to the amendments regarding anti-absorption rules.63

Finally, similar to the Anti-dumping Rules, the central government amended the Countervailing Rules. The key changes relate to the scope of a domestic industry, 'like articles', the length of an investigation, the framework for pre-initiation consultation, price undertakings, expiry review and anti-circumvention investigations.64

Significant legal and practical developments

As stated above, DA determination orders and Ministry of Finance imposition orders are statutorily appealable to CESTAT on the merits. However, 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).

In Exotic Décor Pvt Ltd v. Designated Authority, DGAD,65 CESTAT noted that the scope of a product under consideration should not be widened post initiation of an investigation. It was observed that the products not manufactured by the domestic producer could not be the cause of any material injury to it. Thus, referring to its earlier decisions on the issue, CESTAT concluded that where the domestic industry has not produced a 'like article' to a product type under investigation, such product types cannot be included in the scope of the product under investigation.

In its first countervailing duty case, Metrod (Malaysia) Sdn Bhd & Ors v. Designated Authority, DGAD,66 CESTAT examined the footnote to Article 1 of the ASCM, which deals with the exemption or remission of duties or taxes on exported products. The tribunal relied on the WTO's decision in EU – PET (Pakistan)67 and held that the DGTR erred in considering an entire import duty exemption on raw material received by the appellant for exports as a subsidy. More specifically, CESTAT held that the 'Designated Authority was required to compute such “excess” amount and the entire exemption received by the appellant could not have been countervailed'.

In the 2020 case The Designated Authority and Ors v. The Andhra Petrochemicals Limited,68 the Supreme Court of India relied upon the guidelines contained in the Manual of Operating Practices for Trade Remedy Investigations (Period of Investigation and Injury Investigation Period) to assess the importance of recent data to carry out an investigation. In line with the WTO Panel Report in the dispute Pakistan – BOPP Film (UAE),69 published in Janaury 2021, the Supreme Court held that anti-dumping investigations based on obsolete data will defeat the purpose of levying a duty. This judgment is also consistent with the recent amendment to Anti-dumping Rules, which mandates that an investigation should not last for more than six months, counted from the date the investigation is initiated.70

Trade disputes

Settling international trade disputes between the Member States is the responsibility of the WTO's Dispute Settlement Body (DSB). According to the WTO's dispute settlement system as set out in the Dispute Settlement Understanding, the disputing members countries are first required to undergo a consultation process aimed at resolving disputes amicably, failing which the complainant country may request the DSB to establish a dispute settlement panel. The DSB has the sole authority to establish these panels of experts to consider cases and to 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, and cannot re-examine existing evidence or examine new issues.71

India has been an active participant before the DSB and has to date raised 24 disputes as a complainant. India has also faced the brunt of 32 cases filed against it by other member nations. In 170 disputes, India acted as a third party.72 Of the 24 WTO disputes filed by India, three disputes are at an advanced stage.

At the time of writing, the WTO and its members are facing a crisis on account of non-functioning of the WTO Appellate Body due to non-appointment of the Appellate Body members. Under Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, the Appellate Body comprises seven members appointed by the DSB to serve a one-year term, with the possibility of being reappointed for one additional term. Currently, there are no members on the Appellate Body as the term of the last sitting member expired on 30 November 2020.73 As a result of a long-standing impasse over the appointment of members, the Appellate Body is unable to review appeals, resulting in a rule-based, well-functioning, impartial and binding dispute settlement system currently being defunct.74

i Trade remedy disputes filed by India

On 9 September 2016, in the WTO dispute US – Renewable Energy,75 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 201976 and 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.77 Currently, the Report of the Panel is the subject of an appeal to the WTO Appellate Body at the request of the United States.78

In 2018, the US imposed additional import duties of 25 per cent and 10 per cent on certain steel products and aluminium products from all countries except Canada, Mexico, Australia, Argentina, South Korea,79 Brazil and those in the European Union. Challenging the imposition of additional import duty, India filed the dispute US – Steel and Aluminium Products (India) and requested the establishment of a panel by the DSB.80 Since the selective levy of additional duty distorts international trade, eight other WTO members, namely Canada, China, the European Union, Mexico, Norway, Russia, Switzerland and Turkey, have also filed disputes against the United States and almost 30 member countries have reserved their right as third party. In January 2019, the Director General established a panel to adjudicate the dispute.81 In February 2021, the panel conveyed its inability to issue a panel report within the stipulated time due to delay caused by the covid-19 pandemic.82

ii Trade remedy disputes against India

In 2013, the United States filed the case India – Solar Cells, wherein both the panel and the Appellate Body found measures introduced by the government of India to be inconsistent with Article III of GATT 1994 and Article 2.1 of the TRIMs Agreement. Although India gave notice of its decision to implement the DSB ruling by December 2017, the United States claimed that India had failed to comply with the ruling and sought suspension of concessions accorded to India.83 Subsequently, in 2018, India requested the DSB to establish a panel to resolve the disagreement between India and the United States.84

In 2015, the government conducted a safeguard investigation into imports of 'hot rolled flat products' and imposed a safeguard duty of 20 per cent ad valorem.85 Aggrieved by this decision, Japan filed the dispute India – Iron and Steel Products86 with the DSB and submitted that the safeguard measures were imposed in violation of Article 2 of the GATT 1994 and various provisions of the AOS. The DSB panel concluded that India's decision was inconsistent with Articles 3.1 and 4.2(c) of the Agreement on Safeguards, in failing to provide reasoned conclusions on all pertinent issues of fact and law.87 Subsequently, both India and Japan gave notice of their decisions to appeal this ruling before the Appellate Body.88 Owing to the limited number of members available, the Appellate Body has not issued its report yet.89

Another WTO trade remedy case, India – Export Related Measures,90 is at the appellate stage. In this dispute, the United States challenged numerous programmes applicable to an array of products and in its decision the panel held certain programmes, such as the Merchandise Exports from India Scheme, to be inconsistent with the ASCM.91 By the end of 2019, the government of India had notified the DSB of its decision to appeal to the Appellate Body.92 Notwithstanding this appeal, the government is already taking initiatives to modify, amend or terminate the programmes found to be inconsistent with the ASCM.93

In 2019, Brazil (DS579), Australia (DS580) and Guatemala (DS581) filed disputes with the WTO challenging domestic support subsidies and export subsidies granted by India to the sugar and sugarcane industry.94 In these disputes, WTO members claimed various measures to be in violation of the Agreement on Agriculture and the ASCM. The complainants claimed that India has substantially increased domestic support, which adversely impacts the competitiveness of other exporting WTO members. At present, the dispute is at the panel stage, but the panellists have apprised the DSB that they expect to issue their reports in the second half of 2021.95

Outlook

Since early 2020, global trade has been significantly disrupted by the covid-19 pandemic and lockdown restrictions. The Indian government's response moved towards promotion of national production by building domestic capacity and reshoring imports into domestic production. The aim was to endorse and encourage self-reliance in manufacturing, driven by the need to reduce imports. The government wanted the economy to move to 'self-reliant India', which included controlling imports into India. The trade policy was changed with the introduction of trade-restricting measures along with policies to reduce dependence on international supply chains. From April 2020 to February 2021, India initiated close to 50 investigations – an unprecedented total – against a number of countries concerning various goods.

The pandemic also made it more difficult to review information and undertake verification of manufacturing units during an investigation. In addition, the investigating authority found it challenging to determine injury when establishing a causal link, on account of alleged dumping or subsidisation, and other factors such as national lockdowns.

The government intends to relax international trade measures to boost the economy. On account of slowdown in global trade over the past year, key industry sectors in India may witness a surge in imports, resulting in multiple trade remedial investigations.

Footnotes

1 Shiraz Rajiv Patodia is a senior solicitor and Mayank Singhal is a principal associate at Dua Associates. The authors thank Ashish Singh of Dua Associates for his analysis 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 the GATT 1947 provides general guidance on the framework and implementation of trade remedial measures. Consequently, the 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 Article III of the GATT 1994.

10 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.

11 Customs Tariff Act, 197 read with the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995.

12 Previously, anti-dumping and anti-subsidy investigations were conducted by the Designated Authority of the Directorate General of Anti-Dumping of the Ministry of Commerce and Industry. Safeguard investigations were previously conducted by the Directorate General (Safeguards). Following the merger of the investigating agencies, all trade remedial investigations are being conducted by the DA of the DGTR.

16 Report (2020) of the Committee on Subsidies and Countervailing Measures G/L/1368 G/SCM/157 adopted on 28 October 2020.

17 Notification No. 01/2018-Customs (SG), New Delhi, 30 July 2018.

18 Rule 3 of the Anti-dumping Rules.

19 Rule 17 of the Anti-dumping Rules.

20 Rule 18 of the Countervailing Rules.

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

22 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 to Explanation (c) to Section 9A(1) of the Act.

23 '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.

24 Section 9A of the Act. The principles for the determination of the normal value, export price and margin of dumping are set out in Annexure I of the Anti-dumping Rules.

25 Rule 11(2) of the Anti-dumping Rules.

26 Also known as the fair selling notional price.

27 Annexure II of the Anti-dumping Rules sets out the principles for the determination of injury and Annexure III sets out those for the determination of the non-injurious price.

28 Article 9.1 of the Anti-Dumping Agreement.

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

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

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

32 Rule 22 of the Anti-dumping Rules.

33 Rule 27 of the Anti-dumping Rules.

34 Section 9C of the Act.

35 Article 1.1 of the ASCM.

36 Rule 4 of the Countervailing Rules.

37 Refer to Explanation to Section 9 of the Act.

38 Section 9 of the Act.

39 Rule 11 of Countervailing Rules.

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

41 Section 9C of the Act.

42 Article 2 of the AOS.

43 The legal text of the India–Korea Comprehensive Economic Partnership Agreement (Bilateral Safeguard Measures) Rules 2017 is available at https://www.cbic.gov.in/resources//htdocs-cbec/customs/cs-act/notifications/notfns-2017/cs-nt2017/csnt77-2017.pdf.

45 Section 8B of the Act.

46 Rule 13 of the Safeguard Rules.

47 Section 8B(4) of the Act.

48 Rule 18 of the Safeguard Rules.

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

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

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

52 In a PTA, two or more partners agree to reductions on an agreed number of tariff lines. The difference between a PTA and an 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.

53 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.

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

55 Press Information Bureau release dated 17 February 2019. Memorandum of understanding available at www.mea.gov.in/Portal/LegalTreatiesDoc/IR18B3496.pdf.

56 Ministry of Commerce and Industry, Press Information Bureau release dated 13 March 2020 available at https://pib.gov.in/PressReleasePage.aspx?PRID=1606300.

57 Reply by the Minister of Commerce and Industry before the House of the People of the Parliament of India, available at http://loksabhaph.nic.in/questions/QResult15.aspx?qref=6738&lsno=17.

58 The legal text of the India–Mauritius CECPA is available at: https://commerce.gov.in/wp-content/uploads/2021/04/Final-India-Mauritius-CECPA-Text-3.pdf.

59 Refer Annexure III of India – Mauritius CECPA.

61 Judgment dated 1 September 2020 in The Designated Authority and Ors v. The Andhra Petrochemicals Limited, Civil Appeal No. 3046-3048 of 2020.

62 Notification No. 09/2020 – Customs (N.T.) New Delhi, 2 February 2020.

64 Notification No. 10/2020 – Customs (N.T.) New Delhi, 2 February 2020.

65 CESTAT Final Order No. 50689-50690/2020.

66 Final Order No. 51069-51072/2021.

67 WTO Dispute Settlement DS486: European Union – Countervailing Measures on Certain Polyethylene Terephthalate from Pakistan, available at: https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds486_e.htm.

68 Civil Appeal No(S). 3046-3048 of 2020.

69 Pakistan – Anti-Dumping Measures on Biaxially Oriented Polypropylene Film from the United Arab Emirates, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds538_e.htm.

70 Explanation to Rule 22 of the Anti-dumping Rules as amended vide Notification No. 09/2020 –
Customs (N.T.).

73 Term of last member of the Appellate Body, Prof. Dr. Hong Zhao, completed on 30 November 2020.

74 WTO Appellate Body Annual Report for 2019–2020 available at: https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/AB/30.pdf&Open=True.

75 WTO Dispute Settlement DS510: United States – Certain Measures Relating to the Renewable Energy Sector.

77 United States – Certain Measures Relating to the Renewable Energy Sector – Report of the Panel WT/DS510/R dated 27 June 2019.

78 United States – Certain Measures Relating to the Renewable Energy Sector – Communication from the Appellate Body WT/DS510/7 dated 14 October 2019.

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

80 United States – Certain Measures on Steel and Aluminium Products – Constitution of the Panel established at the request of India – WT/DS547/9/Rev.2 dated 19 August 2019.

82 United States – Certain Measures on Steel and Aluminium Products – Communication from the Panel WT/DS547/11 dated 8 February 2021.

83 India – Certain Measures Relating to Solar Cells and Solar Modules – Recourse to Article 22.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) by the United States – WT/DS456/18 dated 20 December 2017.

84 India – Certain Measures Relating to Solar Cells and Solar Modules – Recourse to Article 21.5 of the DSU by India – Request for the establishment of a panel – WT/DS456/20 dated 29 January 2018.

85 Notification No. 1/2016-Customs (SG) issued by the Ministry of Finance, government of India dated 29 March 2016 levying safeguard duty of 20 per cent ad valorem.

86 WTO Dispute Settlement DS518: India – Certain Measures on Imports of Iron and Steel Products.

87 India – Certain Measures on Imports of Iron and Steel Products – Report of the Panel – WT/DS518/R dated 6 November 2018.

88 Notifications of appeals by India and Japan under Article 16.4 and Article 17 of the DSU – WT/DS518/8 and WT/DS518/9 dated 18 December 2018 and 12 January 2019 respectively.

89 India – Certain Measures on Imports of Iron and Steel Products – Communication from the Appellate Body – WT/DS518/10 dated 22 February 2019.

90 WTO Dispute Settlement DS541: India – Export Related Measures.

91 India – Export Related Measures – Report of the Panel – WT/DS541/R dated 31 October 2019.

92 Notification of an appeal by India under Article 16.4 and Article 17 of the DSU – WT/DS541/7 dated 22 November 2019.

93 Ministry of Commerce and Industry, government of India vide Trade Notice No. 03/2020-21 dated 15 April 2020 notifying the 'Introduction of the Remission of Duties and Taxes on Exported Products (RoDTEP) Scheme' to boost exports to global markets.

95 India – Measures Concerning Sugar and Sugarcane – Communication from the Panels – WT/DS579/9 dated 29 April 2020.

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