Injury and Causation in Safeguard Investigations: Experience of India and Other WTO Members

Abstract

While the developed Members within the WTO have slowed down their recourse to safeguard measures, a number of developing countries such as India, Indonesia, Argentina and Turkey have become active users of such remedies. This chapter examines the practices and the tools developed by these emerging users in safeguards investigations. In particular this chapter seeks to examine whether the new users are conducting the injury and causation tests in conformity with the thresholds laid down by the WTO agreements and the jurisprudence developed by the panels and the Appellate Body.

Appendix

Case 1 # SG/IV/4/97: Safeguard Investigation Concerning Imports of Flexible Slabstock Polyol of Molecular Weight 3000–4000 Used in the Manufacture of Slabstock Foams and Polyurethane Foam Mattresses from Singapore and Japan

Petitioners: M/s Manali Petrochemicals Ltd. Chennai and M/s SPIC Organics Ltd., Chennai.

Date of Final Findings: September 17, 1998

Consideration of Injury Parameters

		1995–96			1996–97			1997–98
S. No.	Factors	W/D	I	U	W/D	I	U	W	I	U
1	Increased imports in absolute or relative terms		✓			✓		Imports Increased
2	Production		✓			✓		✓
3	Domestic sales		✓			✓		✓
4	Market share	✓			✓			✓
5	Stocks		NM			NM		✓
6	Capacity utilization		NM			NM		✓
7	Profits and losses	(stated to have declined over a period of time)
8	Employment		NM			NM		✓
9	Productivity		NM			NM		✓

1. NM Not mentioned; W/D Worsened/Declined; I Improved/Increased; U Unchanged

Non-attribution analysis
S. No.	Other unlisted factors	Whether discussed or not
1	Superior quality	Yes
2	Technical support	Yes
3	Inefficiency of domestic producers	Yes
4	Monopoly status of domestic producers	Yes

Case 2# SG-REP/4/98: Safeguard Investigation Concerning Imports of Hard Board (High Density Fibre Board) from Thailand, South Africa, Malaysia, Italy and Pakistan

Petitioners: All India Fibre Board Manufacturers Association.

Date of Final Findings: November 12, 1998.

Consideration of Injury Parameters

		1995–96			1996–97			1997–98
S. No.	Factors	W	I	U	W	I	U	W	I	U
1	Increased imports in absolute or relative terms	NM			Volume Increased			Volume Increased
2	Share of domestic market taken by increased imports		NM			✓		✓
3	Domestic sales		NM			✓		✓
4	Production		NM			✓		✓
5	Stocks		NM			✓		✓
6	Capacity utilization		NM			✓		✓
7	Profits and losses		NM			NM			NM
8	Employment		NM			NM			NM
9	Domestic consumption		NM			NM			NM

1. NM Not mentioned; W/D Worsened/Declined; I Improved; U Unchanged

Non-attribution analysis
S. No.	Other unlisted factors	Whether discussed or not
1	Import price of off-cut Hard board lower than that of standard size	Yes
2	Decline in domestic selling price	Yes
3	Quality	Yes
4	Differences in the end use of the imported and domestic products	Yes
5	Individual performance of the three domestic producers	Yes

Case 3 #SG/INV/2/98: Safeguard Investigation Concerning Imports of Phenol from Germany, Italy, US, Tokyo, Korea, Taiwan, South Africa and Switzerland

Petitioners: Hindustan Organic Chemicals Ltd. (HOC, Mumbai; Herdilia Chemicals Ltd. (HCL), Mumbai and Neyveli Lignite Corporation, Tamil Nadu.

Date of Final Findings: May 12, 1999

Consideration of Injury Parameters

		1995–96			1996–97			1997–98			1998–99
S. No.	Factors	W	I	U	W	I	U	W	I	U	W	I	U
1	increased Imports in absolute or relative terms		✓		✓			✓			Volume Increased
2	Production		✓		✓				✓		✓
3	Capacity utilization		NM			NM			✓		✓
4	Sales		✓		✓				✓		✓
5	Stocks		NM			✓		✓				✓
6	Employment			✓			✓			✓			✓
7	Profits and losses		NM			NM			NM			NM
8	Market share	✓				✓		✓				✓

1. NM Not mentioned; W/D Worsened/Declined; I Improved; U Unchanged

Non-attribution analysis
S. No.	Other unlisted factors	Whether discussed or not
1	Export performance of the domestic industry	Yes
2	Quality differences	Yes
3	Dumping of phenol in the Indian market	Yes
4	Captive consumption of phenol by the domestic industry	Yes
5.	Monopoly/Duopoly by domestic producers	Yes
6.	Global chemical industry recession	Yes
7.	Shut down of operations for 15–40 days during 1998–99	Yes
8.	Productivity of the domestic industry	Yes

Case 4# SG/INV/2/2000: Safeguard Investigation Concerning Imports of Methylene Chloride from Taiwan and Hungary

Petitioners: Gujarat Alkalies and Chemicals Ltd. (GACL), Gujarat; Chemplast Sanmar Limited, Chennai and SRF Ltd., New Delhi.

Date of Final Findings: December 15, 2000

Consideration of Injury Parameters

		1996–97			1997–98			1998–99			1999–2000
S. No.	Factors	W/D	I	U	W/D	I	U	W	I	U	W	I	U
1	Increased imports in absolute or relative terms	Imports Increased			Imports Declined			Imports declined			Imports declined
2	Share of domestic market taken by increased imports		NM			NM			NM			NM
3	Domestic sales	✓				✓			✓			✓
4	Production	✓				✓			✓			✓
5	Productivity			✓			✓			✓			✓
6	Capacity utilization	✓			✓				✓			✓
7	Profits and losses		NM			NM		✓			✓
8	Employment			✓			✓			✓			✓
9	Domestic consumption	✓				✓			✓			✓
10	Stocks	✓			✓				✓		✓

1. NM Not mentioned; W/D Worsened/Declined; I Improved; U Unchanged

Non-attribution analysis
S. No.	Other factors	Whether discussed or not
1	Other unlisted known factors	No

Case 5# F. No. SG/INV/1/2002: Safeguard Investigation Concerning Imports Epichlorohydrin from Japan, US, Belgium and Korea

Petitioners: Tamil Nadu Petroproducts Limited (TPL) Chennai.

Date of Final Findings: June 25, 2002

Consideration of injury parameters

		1997–98			1998–99			1999–2000			2000–01			2001–02
S. No.	Factors	W	I	U	W	I	U	W	I	U	W	I	U	W	I	U
1	Increased imports in absolute or relative terms	Imports consistently increased
2	Share of domestic market taken by increased imports	✓			✓			✓			✓				✓
3	Domestic sales	✓			✓				✓			✓			✓
4	Production	✓			✓					✓		✓		✓
5	Productivity	✓			✓					✓		✓			✓
6	Capacity utilization	✓			✓			✓				✓				✓
7	Profits and losses		✓			✓		✓				✓		✓
8	Employment	✓			✓			✓			✓			✓
9	Stocks	✓				✓			✓		✓				✓

1. NM Not mentioned; W/D Worsened/Declined; I Improved; U Unchanged

Non-attribution analysis
S. No.	Other unlisted factors	Whether discussed or not
1	Export performance of the domestic industry	Yes
2	Quality difference	Yes

Case # 6: SG/INV/1/2003: Safeguard Investigation Concerning Imports of Bisphenol-A from China, Germany, US, Singapore, Taiwan, Korea and Japan

Petitioners: Kesar Petrochemicals Limited, Mumbai.

Final finding: October 27, 2003

Consideration of Injury Parameters

		1998–99			1999–2000			2000–01			2001–02			2002–03
S. No.	Factors	W/D	I	U	W/D	I	U	W	I	U	W/D	I	U	W	I	U
1	Increased imports—absolute or relative		✓			✓		✓				✓			✓
2	Share of domestic producers	✓			✓				✓		✓			✓
3	Domestic sales		✓			✓			✓		✓			✓
4	Production		✓			✓		✓				✓		✓
5	Productivity		NM			NM			NM			NM				NM
6	Capacity utilization			NM		✓			NM		✓			✓
7	Profits and losses		NM			NM			NM			NM				NM
8	Employment		NM			NM			NM			NM				NM
9	Domestic consumption		✓			✓			✓			✓			✓

1. NM Not mentioned; W/D Worsened/Declined; I Improved; U Unchanged

Non-attribution analysis
S. No.	Other unlisted factors	Whether discussed or not
1	Expansion of capacity by the domestic producers	Yes
2	Injury due to export performance	Yes
3	Demand- supply gap	Yes
4	Increase in raw material prices	Yes
5	Difference in quality and technical support	Yes
6	Inefficiency of domestic producers	Yes

Case # 7: Safeguard Investigation Concerning Imports of Starch; Manioc (Cassava, Tapioca) Based Sago and Modified Starches

Petitioners: A representation filed by the Farmers and Farmers Association of Tamil Nadu and Tamil Nadu Sago and Starch Manufacturers Welfare Association (TASSMA).

Date of final finding: February 16, 2005

Consideration of Injury Parameters

		2002–2003			2003–2004
S. No.	Factors	W/D	I	U	W/D	I	U
1	Increased imports in absolute or relative terms	✓				✓
2	Share of domestic market taken by increased imports		✓		✓
3	Domestic sales	✓			✓
4	Production	✓				✓
5	Productivity		NM		✓
6	Capacity utilization	✓				✓
7	Profits and losses		✓		✓
8	Employment			✓	✓

1. NM Not mentioned; W/D Worsened/Declined; I Improved; U Unchanged

Non-attribution analysis
S. No.	Factors	Whether discussed or not
1	Dumping of starch in the domestic market of India	Yes
2	Decline in export market share of the domestic industry	Yes
3	Captive consumption of starch must have been excluded from the investigation	Yes
4	Inefficiency of domestic producers	Yes
5	Self-inflicted injury by the domestic producers	Yes
6	Prices of raw materials	Yes
7	Ground water depletion	Yes
8	Increase in the cost of energy	Yes
9	Inability of small scale units to compete with large scale units	Yes
10	Withdrawal of preferential treatment in respect of Excise duty to small scale units vis-à-vis medium units	Yes

Case # 8: D-22011/07/2009: Safeguard Investigation Concerning Imports of Dimethoate Technical from China

Petitioners: M/s Shivalik Rasayan Limited

Date of Final Findings: May 14, 2009

Consideration of Injury Parameters

		2006–2007			2007–2008			2008–2009
S. No.	Factors	W	I	U	W	I	U	W	I	U
1	Increased imports in absolute or relative terms	✓				✓			✓
2	Share of domestic market taken by increased imports	✓				✓			✓
3	Domestic sales		✓		✓			✓
4	Production		✓		✓			✓
5	Productivity			✓			✓			✓
6	Capacity utilization		✓		✓			✓
7	Profits and losses		✓			✓		✓
8	Employment			✓			✓	✓

1. NM Not mentioned; W/D Worsened/Declined; I Improved; U Unchanged

Non-attribution analysis
S. No.	Factors	Whether discussed or not
1	Other unlisted factors	No

Case # 9: D-22011/32/2008-Safeguard Investigation Concerning Imports of Phthalic Anhydrite from Korea, Pakistan, Taiwan, Indonesia and Iran

Petitioners: M/s Thriumalai Chemicals Ltd.; M/s IG Petrochemicals Ltd.; M/s Mysore Petrochemicals Ltd.; M/s SI Group India Ltd.

Date of Final Findings: May 28, 2009

Consideration of Injury Parameters

		2005–06			2006–2007			2007–2008			2008–2009
S. No.	Factors	W	I	U	W	I	U	W	I	U	W	I	U
1	Increased imports in absolute or relative terms			NM	✓				✓			✓
2	Market share of the domestic producers			NM		✓		✓			✓
3	Domestic sales			NM		✓			✓		✓
4	Production			NM		✓			✓		✓
5	Productivity			NM			✓			✓			✓
6	Capacity utilization			NM		✓			✓		✓
7	Profits and losses	✓				✓			✓		✓
8	Employment			NM			✓			✓	✓
9	Stocks			NM		✓			✓			✓

1. NM Not mentioned; W Worsened; I: Improved; U Unchanged

Non-attribution analysis
S. No.	Factors	Whether discussed or not
1	Deterioration of export performance of the domestic industry	Yes
2	Losses suffered by the petrochemical industry due to the 2008 global recession	Yes

Case # 10 (F. No. D-22011/23/2008): Safeguard Investigation Concerning Imports of Linear Alkyl Benzene into India from Iran, Saudi Arabia, Qatar and Switzerland

Petitioners: M/s. Reliance Industries Ltd., Mumbai; M/s Tamil Nadu Petroproducts Ltd., Chennai; M/s Nirma Ltd., Ahmedabad and M/s Indian Oil Corporation Ltd., New Delhi.

Date of Final Findings: November 18, 2009

Consideration of Injury Parameters

		2006–2007			2007–2008			2008–2009
S. No.	Factors	W	I	U	W	I	U	W	I	U
1	Increased imports in absolute or relative terms		✓			✓			✓
2	Share of domestic market	✓			✓			✓
3	Domestic sales	✓			✓			✓
4	Production	✓				✓		✓
5	Productivity		✓				✓	✓
6	Capacity utilization	✓			✓			✓
7	Profits and losses	✓			✓				✓
8	Employment			✓		✓		✓
9	Stocks			NM			NM			NM

1. M Not mentioned; W Worsened; I Improved; U Unchanged

Non-attribution analysis
S. No.	Other factors	Whether discussed or not
1	Improvement in domestic prices	Yes
2	Decline in domestic exports	Yes
4	Inter unit dynamics among producers in India	Yes
5	Overall position of the domestic industry	Yes
6	Export oriented design of the domestic producers	Yes

Case # 11: D-22011/27/2009: Safeguard Investigation Concerning Imports of Uncoated paper and copy Paper from Indonesia, Thailand, Finland, China, Hong Kong, Japan, Singapore and the US

Petitioners: ITC Limited—Paperboards and Specialty Papers Division; Ballarpur Industries Limited; JK Paper Limited; M/s The Andhra Paper Mills Ltd; M/s Tamil Nadu Newsprint and Papers Limited; Abhishek Industries Ltd.; Century Pulp and Paper; Emami Paper Mills Ltd.; Hindustan Paper Corporation Ltd.; Khanna Paper Mills Ltd.; The Mysore Paper Mills Ltd.; Orient Paper and Industries Ltd.; Pudumjee Pulp and Paper Mills Ltd.; Rama Newsprint and Papers Ltd.; Seshasayee paper and paper Board Ltd.; The Sirpur Paper Mills Ltd.; Star Paper Mills Ltd., The West Coast Paper Mills Ltd. and Yash Paper Mills Ltd.

Date of final findings: November 5, 2009

Consideration of Injury Parameters

		2007–2008			2008–2009
S. No.	Factors	Worsened	Improved	Unchanged	Worsened	Improved	Unchanged
1	Increased imports in absolute or relative terms		✓			✓
2	Share of domestic market taken by increased imports			✓			✓
3	Domestic sales		✓		✓
4	Production		✓			✓
5	Productivity		NM			NM
6	Capacity utilization	✓				✓
7	Profits and losses		✓		✓
8	Employment		NM			NM

1. NM Not mentioned

Non-attribution analysis
S. No.	Factors	Whether discussed or not
1	Other unlisted known factors	No

Case #12: D-22011/25/2009: Safeguard Investigation Concerning Imports of Coated Paper and Paper Board from China, Singapore, Japan, Hong Kong, Korea and Finland

Petitioners: ITC Limited—Paper Boards and Specialty Papers Dimension; Ballarpur Industries Limited and JK Paper Limited.

Date of Final Findings: November 13, 2009

Consideration of Injury Parameters

		2007–2008			2008–2009
S. No.	Factors	Worsened	Improved	Unchanged	Worsened	Improved	Unchanged
1	Increased imports in absolute or relative terms		✓			✓
2	Share of domestic market taken by increased imports	✓			✓
3	Domestic sales		✓		✓
4	Production	✓			✓
5	Productivity		ND			ND
6	Capacity utilization			✓		✓
7	Profits and losses	✓			✓
8	Employment		ND			ND

1. ND No data for analysis; W Worsened; I Improved; U Unchanged

Non-attribution analysis
S. No.	Factors	Whether discussed or not
1	Other unlisted known factors	No