Canadian International Trade Tribunal Canadian experience and the practice of the Canadian International Trade Tribunal with regard to WTO jurisprudence. Cases in the recent past Jean Bédard, Q.C. Acting Chairperson, Canadian International Trade Tribunal

DISCLAIMER The views expressed in this presentation are those of the presenter only and should not be construed or interpreted as representing the views of the Canadian International Trade Tribunal or of the Government of Canada.

Introduction Canada is among countries frequently conducting anti-dumping (AD) and countervailing duty (CVD) investigations Canada also actively participates in WTO dispute settlement proceedings in area of trade remedies, WTO jurisprudence is important to Canadian trade remedies institutions Two recent WTO dispute settlement proceedings had an important impact on recent practice and decisions of the Canadian International Trade Tribunal (Tribunal) Canada – Welded Pipe (WT/DS482), panel report and US – Carbon Steel (India) (WT/DS436), Appellate Body report

Canada’s Trade Remedies Investigations – Overview Process is complaint driven For AD and CVD investigations, Canada has a bifurcated trade remedies system: investigation is started by complaint filed with the Canadian Border Services Agency (CBSA) investigation of dumping and subsidization by CBSA injury inquiry by Tribunal The Tribunal has exclusive jurisdiction for safeguard inquiries, the CBSA is not involved in the process

The Sequence of AD and CVD Investigations Process is complaint driven Parallel inquiries conducted by CBSA and the CITT If affirmative findings of dumping/subsidization by CBSA and of a reasonable indication of injury or threat of injury by Tribunal collection of provisional duties by CBSA begins at the time of its preliminary determination and final phase begins Similar process is repeated for the final phase Imposition of final duties requires affirmative decisions by both the CBSA and the CITT

The Tribunal’s Mandate The Tribunal is an independent quasi-judicial body Tribunal hears appeals of customs and excise tax rulings, cases on dumped and subsidized imports and injury determinations, safeguard complaints and complaints about federal government procurement When requested by the Government of Canada, the Tribunal also provides advice on other economic, trade and tariff matters The Tribunal has a quasi-judicial role with regard to its trade remedies mandate and other mandates

Judicial Review of Tribunal Decisions The Tribunal’s injury determinations in trade remedy investigations are reviewable by: Federal Court of Appeal and Supreme Court of Canada (Supreme Court) NAFTA binational panels for cases involving the United States and Mexico WTO panels and the Appellate Body

The Effect of International Law in Canadian Law Canada’s legal system, like that of most common law countries, is based in the legal tradition of dualism international law: not directly applicable domestically international treaties: need to be implemented by legislation giving legal effect Specific provisions of a WTO agreement need to be legislated into domestic law so as to become endowed with statutory force From an international law perspective, WTO panel and Appellate Body reports adopted by DSB are binding between the disputing parties

The requirement in Canadian law to interpret SIMA in light of WTO Law The Supreme Court of Canada has confirmed on at least 2 occasions the importance of considering Canada’s international obligations in the interpretation of domestic legislation National Corn Growers (a 1990, pre-WTO case) R. v. Hape (SCC, 2007) Important: the wording of the statute sets the limitation for its interpretation in light of international law

Influence of WTO law on Tribunal decisions WTO Agreements have legal interpretation mechanism via the Dispute Settlement Understanding (DSU) National Corn Growers and R. v. Hape have confirmed the importance for the Tribunal to refer to WTO law, when necessary, in its interpretation of domestic legislation Increased importance of WTO law for the Tribunal’s interpretation of SIMA In addition to having an influence on Tribunal decisions, WTO law was recently considered by the Federal Court of Appeal in its review of a decision of the CITT on the composition of the domestic industry

The WTO Panel decision in Canada – Welded Pipe Dispute concerned anti-dumping measures imposed by Canada under SIMA on imports of carbon steel welded pipe from Chinese Taipei Main claims: Article 5.8 ADA requires immediate termination of an investigation for an individual exporter where the margin of dumping of that exporter is de minimis (less than 2% of export price of goods) Article 3 ADA requires that the volume of non-dumped imports (i.e., de minimis imports) be removed from the injury analysis Case not appealed by disputing parties

Impact of Canada – Welded Pipe on Tribunal’s Rebar and FISC inquiries Exporters with de minimis margins of dumping in both cases Determinations made after the WTO panel’s decision in Canada - Welded Pipe became binding on Canada, but before the required amendments to the SIMA came into force Consequence: CBSA did not (yet) have the means to terminate investigations for individual exporters with de minimis margins of dumping

Impact of Canada – Welded Pipe on Tribunal’s Rebar and FISC inquiries (Continued) In both Rebar and FISC, Tribunal took account of panel’s recommendations in two aspects of its decision: (1) Treated all imports with zero or de minimis margins of dumping as non-dumped goods Tribunal had previously excluded exporters with 0 % margins of dumping from its analysis, but not exporters with de minimis margins. (2) Tribunal considered panel’s recommendations regarding termination of the investigation for individual exporters with zero or de minimis margins of dumping in both investigations

The WTO panel and Appellate Body decision US – Carbon Steel (India) Dispute between the U.S. and India addressed numerous aspects of CVD proceedings Most significant issue to Tribunal’s practice and proceedings: India’s complaint of violation of Article 15.3 SCMA by US laws which were requiring a cumulative assessment of the effects of subsidized imports with the effects of imports not subject to simultaneous countervailing duty investigations Article 15.3 SCMA allows for cumulative assessment of the effects of dumping and subsidization Similar provision under SIMA section 42(3)

Impact of US – Carbon Steel (India) on FISC injury inquiry SIMA section 42(3) similar to Article 15.3 SCMA Prior to US – Carbon Steel (India): Tribunal routinely assessed effect of dumped and subsidized imports in single-country and multiple-country investigations on cumulated basis AB findings regarding interpretation of Article 15.3 SCMA is one of the most significant WTO dispute settlement decisions relating to injury determination. Tribunal considers AB interpretation highly relevant to multiple-country investigations involving dumped and subsidized imports

Impact of US – Carbon Steel (India) on FISC injury inquiry (Continued) Facts in FISC: imports from Korea and Spain that were dumped and imports from China that were dumped and subsidized Regarding Cross Cumulation: Tribunal noted in its reasons in FISC that panel finding in Canada – Welded Pipe is confirmation that cumulative assessment of effects of dumping and subsidizing of same goods from a single country is permissible

Conclusions Not unlike domestic law, WTO law can be ambiguous Also, there are instances where interpretations of the Agreements rendered by panels/the AB can be somewhat vague Although Tribunal has mandate to interpret SIMA and related domestic trade remedy laws in harmony with WTO law, this task is not simple where Tribunal is faced with ambiguous provisions (or rulings) at two levels, domestic and WTO law Where possible, Tribunal takes into consideration WTO law in its decisions, thus making sure that trade remedy laws are interpreted and applied consistently with WTO Agreements and jurisprudence

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