Applicable time limit in Anti-dumping review proceedings

Three types of reviews are contemplated under the WTO Anti-dumping Agreement & Indian Anti-dumping Rules, 1995 namely (i) Mid-term review under Rule 23(1A) (ii) Sunset review under Rule 23(1B) and (iii) New Shipper review under Rule 22.

Relevant legal provisions under Anti-dumping Rules, 1995

Rule 23(2) of the Anti-dumping Rules provide that any review initiated under sub-rule (1) shall be concluded within a period not exceeding 12 months from the date of initiation of review.

Rule 23(3) of the Anti-dumping Rules further provide that provisions of rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19 and 20 shall be mutatis mutandis applicable in the case of review.

Rule 17(1) of the Anti-dumping Rules provide that the Designated Authority shall, within one year from the date of initiation of investigation, determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final finding. Rule 17, first proviso further provides that Central Government may, [in its discretion in special circumstances] extend further the aforesaid period of one year by six months.

Rule 22 of the Anti-dumping Rules provide for new shipper review. However, Rule 22 does not specify any time period and does not refer to Rule 17 of the Anti-dumping Rules.

In this background, question arises regarding the applicability of Rule 17 of the Anti-dumping Rules in review proceedings.

Time period in sunset review and mid-term review proceedings

Extension of time period beyond 12 months period in sunset review proceeding was challenged before the Hon’ble Delhi High Court in Fairdeal Polychem LLP and Ors. v. Union of India and Ors. Petitioner contended that the use of the word ‘shall’ and ‘not exceeding’ in Rule 23(2) clearly implies mandatory character of the provision. Petitioner also argued that the rule of mutatis mutandis is one of adaptation and not adoption and therefore Rule 17 cannot be borrowed, and  therefore extension of six months time period contemplated under Rule 17 is not available for sunset review proceedings.

The Court rejected the plea of the petitioners and observed that Central Government has the power to grant an extension of 6 months for concluding a review. [see Endnote 1] The High Court observed that proviso to Rule 17(1) can be pressed into service for extending the time of 12 months for concluding a review under Rule 23(2) [see Endnote 2].  Delhi High Court observed that phrase mutatis mutandis implies that a provision contained in other part of the statute would have application as it is with certain changes in points in detail. Thus, Rule 17 of the said rules would apply to a case of review under Rule 23 “as it is with certain changes in points of detail”. [see Endnote 3]

High Court also relied on Article 11.4 of the Anti-dumping Agreement which provides that the review contemplated under Article 11 shall be carried out expeditiously and shall normally be concluded within 12 months. It observed that word “normally” implies that period of 12 months is not an inflexible period. Special leave petition is preferred against the decision of the High Court but the same is still pending before the Hon’ble Supreme Court.

Thus, unless the Supreme Court intervenes, it is now clear that maximum time period available for conducting mid-term review is 18 months.

Time period in new shipper review proceedings

Unlike Rule 23, Rule 22 of Anti-dumping Rules, which provides for the new shipper review does not prescribe any time period. In Saint Gobain India Private Ltd. v. Union of India & Ors. [see Endnote 4], Petitioner challenged the continuation of new shipper review beyond 18 months time period. Petitioner contented that Rule 23 speaks of review and Rule 23(2) states that Rule 17 applies in case of review. Thus, as per Rule 17, final findings are to be rendered within one year from the date of initiation or if the time limit is extended than it has to be completed within 18 months but cannot be extended beyond 18 months.

Hon’ble High Court of Madras rejected the contention of the petitioner. It observed that Rule 22 and Rule 23 operate in different spheres and well-defined compartments and the plea that subject Rule 23(3) read with Rule 17 should be superimposed in Rule 22 to fix a time limit amounts to re-writing the Rule, which is impermissible. [see Endnote 5]

High Court also observed that the initiation notification in the instant case was issued on 23 September 2015. Period of review was fixed from 1^st July 2015 to 31^st March 2016. Therefore, all steps that are required to be taken, pursuant to the initiation can take place only after 1^st April 2016. Therefore, according to the Hon’ble High Court, plea that Rule 23(3) be superimposed into Rule 22 and that period of limitation will commence from 23 September 2015 and end on 22 September 2016 is required to be rejected. [see Endnote 6]

Writ appeal filed before the division bench of the Hon’ble Madras High Court against the aforesaid decision is currently pending.  Thus, unless the division bench of the High Court intervenes, it is clear that there is no time limit for completing new shipper review under the Anti-dumping Rules. 

Conclusion

Thus, for the purpose of conducting mid-term review and sunset review proceedings, Rule 17 can be borrowed for extending the time limit by six months period owing to the specific provision under Rule 23(3). However, Rule 17 cannot be borrowed to restrict the time period available for new shipper review to 18 months.  

As already noted, special leave petition before the Supreme Court against the decision of the Delhi High Court and the Writ Appeal before the division bench of Madras High Court are currently pending. Unless, these decisions are reversed in appeal, it is clear that sunset review and mid-term review proceedings can be completed within 18 months time period if central government grants extension of six months and that the maximum time period of 18 months is not applicable for new shipper review.  

 [The author is Principal Associate, International Trade Practice, Lakshmikumaran & Sridharan, New Delhi]