The International Trade Law Review: Malaysia
Overview of trade remedies
Trade remedies have historically been a relatively underused and underdeveloped area of trade law in Malaysia.
Malaysia achieved its independence on 31 August 1957 and by 24 October 1957 was already a signatory to the General Agreement on Tariffs and Trade (GATT).
In response to Article VI of GATT, by virtue of the Customs (Dumping and Subsidies) Ordinance 1959 – which was largely modelled on the United Kingdom's Customs Duties (Dumping and Subsidies) Act 1957 – a law to prevent dumping was introduced in Malaysia for the first time.
However, this Ordinance was never implemented as there were issues with its enforceability.2 First, this was attributed to the fact that there was no specific provision on the causal link between dumping and injury brought upon the domestic industry.3 This was contrary to Article VI of GATT, in which causality was a condition. Second, the Ministry of Finance was the relevant authority to determine and collect anti-dumping duties under the Ordinance.4 Owing to the complex procedures, the Ministry was not well equipped to administer the law on anti-dumping.
Simultaneously, the Kennedy Round (1964–1967), followed by the Tokyo Round (1973–1979) and subsequently the Uruguay Round (1986–1994) brought significant changes to laws on anti-dumping under GATT. These changes, and the fact that Malaysia created its anti-dumping law very early on, left regulators in the lurch as the Ordinance was rapidly losing its relevance and was not up to the standards of the time.
The government instead preferred the approach of imposing import duties across the board.5 However, this was an inefficient technique – one that led to some unintended consequences. First, it went against the policy of the government at the time, which was to reduce protectionist measures to create a competitive domestic industry.6 Second, it led to inflation.7
Therefore, in light of Malaysia's commitment under GATT, and its new-found commitment as a member of the Association of Southeast Asian Nations (ASEAN) under the ASEAN Free Trade Area, the Countervailing and Anti-Dumping Duties Act 1993 (CADDA) was enacted to address the pitfalls of the previous Ordinance. One of the primary changes under CADDA was that a specialist division under the Ministry of International Trade and Industry (MITI) was tasked to administer Malaysia's anti-dumping law.
Again, however, as CADDA was implemented before the conclusion of the Uruguay Round, substantial changes had to be made to bring the law into compliance with the Agreement on Implementation of Article VI. Thus, by virtue of the Countervailing and Anti-Dumping Duties (Amendment) Act 1998, CADDA underwent some substantial changes, primarily with regard to definitions, basic principles and investigative procedures, to reach its current form.
With regard to safeguarding measures, Malaysia enacted the Safeguards Act 2006 (SA) to fulfil its obligations as a World Trade Organization (WTO) Member. The SA is in direct conformity with the WTO Agreement on Safeguards.
As detailed above, Malaysia suffered several setbacks in implementing its laws on trade remedies, which is why trade remedies were an underused and underdeveloped area of trade law in Malaysia. This was propounded by the fact that most industries in Malaysia were undergoing a developmental phase, as is the case with most developing nations, and as such did not have sufficient initiative to seek such remedies.
Nevertheless, the tide turned rapidly as the speed of economic development brought with it an appetite for local industries to seek trade remedies, as evidenced by the increase in number of initiated investigations in recent years.
As it stands, CADDA and the SA, both of which are administered by MITI, are the relevant legislation that provide for trade remedies in Malaysia. They are both also in line with WTO standards and obligations.
i Anti-dumping measures
CADDA is the primary law that provides for trade remedies in Malaysia. It is also the most widely used. Approximately 70 anti-dumping investigations have been initiated8 in the past 20 years. Although this is a small number in comparison with other jurisdictions, there has been an increase in investigations in recent years, with more than 30 initiations between 2011 and 2018 alone.
CADDA provides for the investigation, the determination of dumping and the imposition of anti-dumping duties. 'Dumping' is defined as the importation of merchandise into Malaysia at less than its normal value as sold in the domestic market of the exporting country.9
Under CADDA, 'normal value' means the comparable price actually paid or payable in the ordinary course of trade for the like product sold for consumption in the domestic market of the exporting country.10 CADDA defines 'exporting country' to mean the country of export of the subject merchandise. In instances where the subject merchandise is not exported directly to Malaysia but trans-shipped through an intermediate country, the intermediate country would be considered to be the exporting country if the subject merchandise is substantially transformed in that country.11
In the event that there are no sales in the domestic market of the exporting country or when sales do not permit a proper comparison, the normal value can be determined by two methods. The first is by comparing the comparable price of the like product when exported to an appropriate third country.12 In the event that there are reasonable grounds for believing or suspecting that a sale of the like product is at a price below unit production costs in the exporting country, the sale may be treated as not having been made in the ordinary course of trade by reason of price and may be disregarded in determining normal value.13
The second method of determining normal value is by constructing the value of the subject merchandise by adding the cost of production to a reasonable amount for selling, administrative and other general expenses and for profits.14 The amount for selling, administrative and other general expenses and profits shall be based on actual information pertaining to production and sales in the ordinary course of trade.15
CADDA defines 'export price' to mean the price actually paid or payable for the subject merchandise.16 If there is no export price, or if the exporter and importer or a third party are related, or there is a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the subject merchandise is first resold to an independent buyer or, if it is not resold, on any reasonable basis.17
With regard to comparison of normal value and export price, CADDA provides for a fair comparison to be made. The comparison shall be made at the same level of trade and, in respect of sales made, as close as possible to the same time. Other differences that affect price comparability shall be given due consideration.18 If the subject merchandise is not imported directly from the country of origin but is exported from an intermediate country, the price at which the subject merchandise is sold from the exporting country to Malaysia shall be compared.19
CADDA defines 'injury' to mean material injury or threat of material injury to the domestic industry, or material retardation of the establishment of such an industry.20 A determination of injury for the purpose of an anti-dumping duty investigation shall involve an objective examination of both the volume of imports of the subject merchandise and the effect of the subject merchandise on prices in the domestic market for like products and the consequential impact of the imports on the domestic producers.21
Last, it must be demonstrated that the subject merchandise, through the effects of dumping, is causing injury to the domestic industry.22 In doing so, an examination must take place, based on all relevant evidence available and any other known factors that show the subject merchandise may be causing injury to the domestic industry.23
With regard to procedure, an anti-dumping investigation can be initiated through the filing of a petition containing sufficient evidence of dumping and injury, with a causal link between the imports of the subject merchandise and injury, made to the government by or on behalf of the domestic industry.24 In addition, the government can, in special circumstances, initiate an anti-dumping investigation of its own volition.25
Upon receiving the petition, the government of the exporting country targeted in the petition26 will be notified. Then, an investigation will be conducted to ascertain whether there is sufficient evidence to justify an investigation, whether there is a sufficient degree of support or if the investigation is in the public interest.27 Upon doing so, the government can reject the petition. If the petition is rejected, the petitioner will be notified.28
If the government decides to initiate an investigation, the appropriate interested parties29 will be notified and a notice of initiation will be published.30 Parties can then choose to make their views known and the relevant parties can respond to the government's questionnaire, which is a means of gathering information to make a decision as set out in the Countervailing and Anti-Dumping Duties Regulation 1994 (CADDR).31
Thereafter, within 120 days of the date of publication of the notice of initiation of investigation, which may be extended by an additional 30 days, the government will make a preliminary determination.32 The preliminary determination can be in the form of either a negative preliminary determination or an affirmative preliminary determination. If a negative preliminary determination is made and it is satisfied that all necessary elements for the imposition of anti-dumping duties are not found, then the investigation will cease.33
In the event of an affirmative preliminary determination, provisional safeguarding measures may be imposed. A final determination shall then be made within 120 days of the date of publication of the notice of the affirmative preliminary determination.34 The final determination will be required to state, inter alia, the names of the exporters and producers of the subject merchandise, a description of the subject merchandise, factors that led to injury and any other reasons.35
Finally, it is important to note that CADDA provides for a judicial review mechanism for any party who is not satisfied with, or who is aggrieved by, the decision in the government's final determination.36
ii Subsidies and countervailing measures
Like anti-dumping measures, countervailing measures are provided for in CADDA. However, in contrast to anti-dumping, there has been very minimal activity in this area. To date, there have been no countervailing investigations initiated by Malaysia to report to the WTO.37
An actionable subsidy that causes adverse effects to the domestic interest, such as causing injury to the domestic industry, shall be subject to countervailing measures.38
Much like an anti-dumping investigation, an initiation of investigation of countervailing duties can be made on behalf of the domestic industry39 or by the government in special circumstances.40 One of the distinguishing factors in the procedure under CADDA between investigations for countervailing measures and for anti-dumping measures is that, for countervailing measures, there is a requirement to have a consultation with the interested foreign governments with the prospect of arriving at a mutually agreed solution.41
If a mutually agreed solution is not reached, injury and causal link would have to be established before an affirmative decision can be made. The procedural requirements for countervailing measures resemble those for anti-dumping as both these trade remedies are regulated under the same statutory regime under CADDA and CADDR.
iii Safeguard measures
The SA came into force on 22 November 2007. Despite receiving a lukewarm response in the beginning, with the first petition not submitted to the government until nearly four years later, on 1 April 2011, since then Malaysia has seen two other safeguard investigations and two further petitions in 2016, and another investigation in 2020, bringing the total to six.
From a legislative perspective, the SA is a reflection of the WTO's Agreement on Safeguards. A petition can be initiated either by the domestic industry or by the government at its own initiative.42 To fulfil the requirements for a safeguard measure, a surge in imports must be established. Then it must be shown that the imports caused serious injury43 or carry the threat of serious injury to the domestic industry.44
If factors other than increased imports of the product under investigation are at the same time causing or threatening to cause injury to the domestic industry, that injury shall not be attributed to the increased imports.45
When the government has determined that there is sufficient evidence of serious injury, or threat of serious injury, an investigation will be initiated.46 This is effected by the publication of a notice of initiation.47 Interested parties, such as foreign exporters and producers of the product under investigation, importers of the product under investigation, governments of exporting countries, domestic producers and relevant trade and business associations within Malaysia, may participate in the investigation.48
All interested parties will have the opportunity to present their views and evidence at a public hearing. In addition, interested parties will be given the opportunity to respond to all written and oral presentations of other interested parties, and to comment on whether the safeguard measure would be in the public interest.49
Thereafter, the government will make a preliminary determination on whether the product under investigation is being imported into Malaysia in such increased quantities and whether the conditions for a safeguard measure have been met.50
If a negative preliminary determination is made, the investigation can be either terminated or investigated further.51 Either way, a preliminary determination would need to be given within 90 days; this period may be extended by a further 30 days.52 If an affirmative preliminary determination is made, a provisional safeguard measure will be applicable.53 A provisional safeguard measure imposed shall not exceed 200 days.54 This time limit coincides with the requirement under the Safeguards Regulations 2007 for a final determination to be issued within 200 days.
The government can impose either a negative final determination or an affirmative final determination. An affirmative final determination shall include, inter alia, a complete description of the product under investigation, the factors that led to serious injury, the duration of the safeguard measure, the time limit for progressive liberalisation and a list of the developing countries exempted.
Although not expressly provided for under the SA, both preliminary and final determinations can be open to judicial review in the Malaysian High Court on the grounds that the investigative authority made a decision tainted with illegality, irrationality or procedural impropriety.
To date, there have been three safeguard measures imposed upon a final determination out of the six investigations initiated.
Malaysia has been active in its involvement in international trade and has become one of the major trading nations in the world. International trade is a key contributor to Malaysia's economic growth and development. The principal exports include electrical and electronics products, chemicals, machinery, appliances and manufactured metals.55 In terms of natural resources, Malaysia exports crude oil, liquefied natural gas, palm oil and natural rubber. In return, the country imports mainly electronics, machinery, petroleum products, plastics, vehicles, iron and steel products and chemicals. Malaysia's top export and import partners are Singapore, China, the United States and Japan.56
As a trading nation, Malaysia has shown a high level of commitment towards building regional and bilateral trade ties through arrangements with individual regional groupings and countries. Malaysia's trade policy has been to pursue efforts in creating a more liberalised and fair global trading environment while according a high priority to the WTO system.
Malaysia currently has bilateral free trade agreements (FTAs) with Japan, Pakistan, New Zealand, India, Chile, Australia and Turkey. Negotiations are still under way with the European Union. Virtually all the bilateral FTAs have specific chapters on trade remedies – most of which reflect the regime under WTO, namely the Agreement on Implementation of Article VI on Anti-Dumping, the Agreement on Safeguards and the Agreement on Subsidies and Countervailing Measures.
In relation to safeguard measures, the bilateral FTA with New Zealand contains an interesting de minimis provision, which states that the originating product from a party may be excluded if it does not cause serious injury or a threat of serious injury.57
This departs from the wording under the WTO Agreement on Safeguards and the SA, in which the de minimis provisions are restricted to apply only to imports from developing country WTO Members with less than 3 per cent of total imports. Other developing country WTO Members with less than 3 per cent total imports amount to less than 9 per cent of total imports.58
The difference mainly lies in the fact that New Zealand may not be considered a developing country Member under the WTO, although there is no definitive list in this regard, and the term 'not a cause of serious injury of threat thereof'59 could plausibly apply to instances in which one of the parties has a share of total imports of more than 3 per cent.60 Essentially, this widens the scope of the de minimis provision for imports.
At the regional level, Malaysia is part of the ASEAN Free Trade Area (AFTA), benefiting from a complete free trade area with the other ASEAN Member States (Brunei, Cambodia, Indonesia, Laos, Myanmar, the Philippines, Singapore, Thailand and Vietnam). ASEAN currently has AFTA FTAs with China, Japan, South Korea, India, Australia and New Zealand. Through AFTA, Malaysia has also entered into the ASEAN Trade in Goods Agreement and, with Brunei, Singapore and Thailand, has embarked on a self-certification pilot project since 1 November 2010, the aim of which is to facilitate an enhanced environment for trade.
Malaysia has also developed significant relations economically and politically with the Gulf Cooperation Council (GCC) and is keen to have strong bilateral trade ties with the GCC through future FTAs. As a member of the Organisation of the Islamic Conference (OIC), Malaysia has actively supported and promoted intra-OIC trade and has ratified the Framework Agreement on Trade Preferential System among OIC countries.
Another interesting development in relation to Malaysia's treaty framework is its involvement in the Regional Comprehensive Economic Partnership (RCEP), which was signed at the end of 2020 by the ASEAN Member States and Australia, China, Japan, New Zealand and South Korea.
In the past, Malaysia has favoured entering into multilateral FTAs. This is evidenced by its keen involvement in multilateral FTAs such as RCEP, illustrating its desire to make the most of its central geographical location to drive its developing export-orientated economy.
Recent changes to the regime
On a general level, there have not been many developments to the laws regulating trade remedies in Malaysia. The significant changes from a Malaysian perspective occurred in 1998 with the amendment to CADDA and thereafter the introduction of the SA, which came into force in 2007.
That being said, there have been some interesting minor changes to the legislative regime. The Safeguards (Amendment) Act 2012 came into force on 1 September 2013. The amendment allows Malaysia to conduct a safeguard investigation and impose safeguard measures on specific countries in accordance with the terms and conditions established in a trade agreement entered into by the government.61 Prior to the amendment, all investigations and safeguard duties were imposed on a global basis irrespective of the source.
Significant legal and practical developments
In relation to the anti-dumping investigations initiated between 1995 and 2003, 13 of the 22 investigations were connected with subject merchandise based on pulp of wood or other fibrous cellulosic material, paper newsprint and paperboard-based materials and recovered paper materials,62 targeting nations such as Thailand, Indonesia and South Korea.
No anti-dumping investigations were initiated from 2007 to 2011. However, since 2011, there has been a sharp increase, with more than 30 investigations initiated.63 Interestingly, with the exception of one investigation on polyethylene terephthalate, all have targeted steel or steel-related subject merchandise such as steel wire rods, steel reinforcing concrete bars, hot-rolled coils and cold-rolled stainless steel in coils from nations such as China, Vietnam, South Korea and Japan.
The current trend in Malaysia is that most, if not all, initiations of investigations for trade remedy measures are intrinsically intertwined with the steel industry; therefore, any discussion on trade remedies in Malaysia must involve a discussion about the steel industry.
Until 2002, the steel industry suffered from low prices and surpluses of capacity. From 2003, during the 'long boom' that occurred in the regional steel industry, China's rapid growth and expansion resulted in a significant increase in the demand for steel.64
By 2008, China was consuming 35 per cent of the world's steel as compared with 13 per cent in 1995. During the 'long boom', most steel companies, Malaysian steel producers included, underwent massive expansion.65 However, in August 2008, steel prices tumbled on the back of the global financial crisis. By the middle of 2009, in response to stimulus packages in various countries, the demand for building materials began to increase and by 2012 consumption of steel had surpassed the 2008 levels.66 Malaysia's construction industry at that time underwent massive growth and expansion on the back of the government's economic transformation programme.
During this period, China continued to increase its steel-making capacity and produced at a high level, resulting in large quantities of steel being available for low prices.67 In addition, China benefited from stimulus measures implemented by its government in 2013, which took the form of tax cuts for small and medium-sized enterprises and streamlined customs regulations to facilitate exports and reforms in value added tax.68
This resulted in the suppression of steel prices in the Malaysian market. As such, a number of investigations have been initiated against exporters.
Although steel products still form the basis of a large number of the investigations conducted, there has also been a shift in recent years to other types of products, such as chemicals.
From a legal perspective, in 2008 we observed the beginning of judicial reviews under Section 34a of CADDA against decisions made by MITI.69 In a reported case, an applicant was successful in reviewing and quashing the decision by the government of Malaysia made under CADDA.70
On the safeguard front, there has been an increase in cases under the SA. To date, all the investigations under the SA have been in relation to steel-related products.
In July 2015, upon a final determination, the government of Malaysia imposed the first-ever safeguard measure by imposing safeguard duty starting at 17.4 per cent on imports of hot-rolled steel plates. The duty applied for three years and was gradually reduced to 10.4 per cent in the final year. Exemptions were given for products whose grade and quality the domestic producers could not manufacture.
In April 2016, the first-ever judicial review of a preliminary determination under the SA was brought before the Malaysian High Court. Judicial review is a remedy available in Malaysia against decisions made in the exercise of a public duty or function. Although the Malaysian High Court granted leave or permission to review the decision to the applicant, who was the petitioner for the safeguard investigation, the review was ultimately dismissed on technical grounds. This confirms for the first time that decisions made under the SA are amenable to review by the courts; however, this is not expressly provided by statute.
In May 2016, the government of Malaysia initiated two simultaneous investigations against steel wire rods and deformed bar-in-coil, and steel concrete reinforcing bars, which was an unprecedented move based on petitions initiated by local steel mills. In April 2017, upon a final determination, the government imposed the second and third safeguard measures by imposing, respectively, safeguard duties starting at 13.9 per cent on imports of steel wire rods and deformed bar in coils and 13.42 per cent on imports of steel concrete reinforcing bars.
Further, in June 2017, the government initiated an anti-dumping investigation on imports of cold-rolled stainless steel originating from China, South Korea, Taiwan and Thailand. In February 2018, anti-dumping duties were imposed on imports from China, South Korea, Taiwan and Thailand. The duties will be in force until 2023.
In 2019, two anti-dumping investigations were initiated: one against cold-rolled coils originating from China, Japan, South Korea and Vietnam; and one against steel concrete reinforcing bars originating from Turkey and Singapore. Anti-dumping duties were imposed in both investigations.
In 2020, an anti-dumping investigation was initiated against imports of galvalume, which resulted in the imposition of anti-dumping duties on imports from China, South Korea and Vietnam.
At the WTO level, there has been very little activity in relation to trade disputes involving Malaysia. In 1995, Malaysia was a respondent in a request for consultation made by Singapore, which was later withdrawn. In 1997, Malaysia was a complainant and requested consultation in United States – Import Prohibition of Certain Shrimp and Shrimp Products. The decision of the panel was reversed by the Appellate Body in 1998.
In recent years, Malaysia's role in WTO disputes has been confined to that of a third party. WTO disputes in which Malaysia has been involved as a third party include European Union – Anti-Dumping Measures on Biodiesel from Argentina, India – Certain Measures Relating to Solar Cells and Solar Modules and Australia – Certain Measures Concerning Trademarks, Geographic Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging.71
In 2020, Malaysia requested WTO dispute consultations with the European Union regarding measures adopted by the EU and its Member States affecting palm oil and palm crop-based biofuels.
Malaysia is unique in the sense that the use of trade remedies is still in its infancy. From a trade practitioner's perspective, these are interesting, formative times.
Although Malaysia's manufacturing sector is largely open to foreign investment and international competition, there are policies in place to protect certain key industries. There are various requirements to obtain approval permits to import certain goods into the country. In addition, tariffs are imposed on certain products and non-tariff barriers to trade. This, alongside government policies to stimulate growth in local industries by providing various incentives, has accorded protection to the developing local industries.
As a consequence, the Malaysian government is seen to have been taking a proactive role in protecting its key local industries, which it considers are essential for the nation's growth. This is likely to be the reason why trade remedies are still an underused means of recourse in Malaysia as the policy is to take pre-emptive protectionist measures to protect local industries from harm, as opposed to reactionist measures such as anti-dumping and safeguard measures. This is one of the primary reasons why the use of trade remedies in Malaysia is not as common as in other jurisdictions.
1 Lim Koon Huan is a partner and Manshan Singh is a senior associate at Skrine.
2 Malaysian Parliament Hansard Report dated 20 May 1993 at page 3,370.
4 id., at page 3,372.
5 id. at page 3,370.
8 Anti-dumping Initiations: By Reporting Member 01/01/1995 – 31/12/2014 provided by the WTO.
9 Countervailing and Anti-Dumping Duties Act 1993 [CADDA], Section 2(1).
10 id., at Section 16(1).
11 id., at Section 2(1) .
12 id., at Section 16(2)(a).
13 id., at Section 16(3).
14 id., at Section 16(2)(b).
15 id., at Section 16(5).
16 id., at Section 17(1).
17 id., at Section 17(2).
18 id., at Section 18(2).
19 id., at Section 18(5).
20 id., at Section 2(1).
21 id., at Section 22a(1).
22 id., at Section 22a(2).
23 id., at Section 22a, Paragraphs (3) and (4).
24 id., at Section 20, Paragraphs (1) and (2).
25 id., at Section 20(7).
26 id., at Section 20(3).
27 id., at Section 20(4).
28 id., at Section 20(6).
29 Section 2(1) of CADDA defines an 'interested party' to mean a producer, exporter or importer of the subject merchandise; a trade or business association a majority of whose members are producers, exporters or importers of the subject merchandise; the government of a country in which the subject merchandise is produced or from which it is exported; a producer of the like product in Malaysia; a trade or business association a majority of whose members produce a like product in Malaysia; or any other party considered appropriate by the government.
30 Section 20(8) of CADDA.
31 Countervailing and Anti-Dumping Duties Regulation 1994 [CADDR], Regulations 8 and 9.
32 id., at Regulation 9.
33 id., at Regulation 11.
34 id., at Regulation 15(1).
35 id., at Regulation 15(2).
36 CADDA, Section 34a(1).
37 Countervailing Initiations: By Reporting Member 01/01/1995 – 31/12/2014 provided by the WTO.
38 CADDA, Section 2c.
39 id., at Section 4(1).
40 id., at Section 4(6).
41 id., at Section 5(1).
42 Safeguards Act 2006 [SA], Section 10.
43 id., at Section 8(1).
44 id., at Section 9(1).
45 id., at Section 8(3).
46 id., at Section 14(1).
47 id., at Section 16.
48 id., at Section 2(1).
49 id., at Section 18(1).
50 id., at Section 20(1).
51 id., at Section 20(2).
52 Safeguards Regulations 2007, Regulation 9.
53 SA, Section 20(3).
54 id., at Section 22(3).
55 Malaysia's Trade Statistics 2015, at www.matrade.gov.my/en/malaysian-exporters/services-for-exporters/trade-a-market-information/trade-statistics.
57 New Zealand–Malaysia Free Trade Agreement, Article 5.3.
58 WTO Agreement on Safeguards, Article 9.1.
59 See footnote 58.
60 SA, Section 40A provides that a safeguard measure can be applied in accordance with the terms and conditions agreed in a trade agreement.
61 SA, Section 40A.
62 Provided by the WTO.
63 Anti-dumping Initiations: By Reporting Member 01/01/1995 – 31/12/2014 provided by the WTO.
64 The 11th Report on Status and Outlook of the Malaysian Iron and Steel Industry 2014/2015 by the Malaysian Iron and Steel Industry Federation, at page 36.
67 id., at page 38.
69 PT Pabrik Kertas Tjiwi Kimia TBK v. Kerajaan Malaysia  3 MLJ 781.