A first of its kind, the Court of Appeal in Diler Miler Celik Endustru VE Ticaret As v. Menteri Kewangan & Ors made a crucial decision with regards to anti-dumping laws in Malaysia. This case, concerning the import of steel concrete reinforcing bars from Turkey, sheds light on the determination of “export price”, the duty of transparency by the investigating authority, and proper adjustments in calculating the dumping margin. The key points of this case can be summarised as follows: –
1. How do you determine “Export Price” in the calculation of dumping margins?
Dumping margins are calculated directly from export prices and normal values of the subject product.
In the present case, the Investigating Authority (IA) adopted the selling price for transaction in the country of origin to determine the “export price”. The sale was an internal transaction between Diler Miler Celik Endustru (DDC) and its subsidiary, Diler Dis Ticaret Anomin Sirketi (DDT), a sale only within Turkey. This was accepted by the High Court as the “export price” despite being a sale only within the country.
Unsurprisingly, the appellate Court rejected the High Court’s decision, ruling that using a related party transaction in the country of origin did not comply with the statutory framework outlined in Section 17 of the Countervailing and Anti-Dumping Duties Act 1993 (“the Act”) in determining the “export price” for purposes of calculating the dumping margin.
The Court instead held that export price should be the price at which the goods are exported. Referring to Merriam-Webster Dictionary, “export” means ““a commodity conveyed from one country or region to another for purposes of trade.” This is a clear and obvious definition of “export”, which the IA failed to take into consideration.
2. Strengthening the Role of Duty Drawbacks in Dumping Margin Calculations
Section 18 of the Act provides for adjustments to account for duty drawbacks in the export price calculation. In this case, the IA again failed to consider these adjustments, which significantly impacted the dumping margin calculation. In allowing the appeal, the Court of Appeal held that the IA did not make an apple-to-apple comparison for determination of the dumping margins. Such mistake by the IA highlights the necessity for proper adjustments, showing devils are in the details.
3. Enforcing Transparency in Anti-Dumping Investigations
The Court further enunciated a critical duty of the IA to disclose essential facts that form the basis of anti-dumping margin calculation. Under Section 18(8) of the Act, affected parties must be given access to the facts and calculations that underpin the dumping margin.
In this case, the lack of transparency from IA prevented the interested parties from verifying the calculation’s accuracy, which the Court identified as a breach of procedural fairness.
This decision reinforces the need for disclosure in anti-dumping proceedings. Transparency not only allows affected parties to challenge or validate determinations but also aligns with Malaysia’s international obligations under the WTO Anti-Dumping Agreement. As a result, the judgment compels investigating authorities to improve their disclosure practices, ultimately fostering a more open and accountable trade environment.
Conclusion
The Diler Miler Celik Endustru judgment is a significant step forward for Malaysia’s anti-dumping framework. Its emphasis on accurate determination of export prices (and normal values), necessary adjustments in the same, and transparency by the ITA. As Malaysia navigates the complexities of global trade and on the increasing reliance on trade remedies (e.g., anti-dumping included) by countries worldwide, this judgment will undoubtedly serve as a guidance for future anti-dumping investigations in Malaysia, whether as a responding party or petitioners.
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