Despite lack of procedural clarity about the conduct of oral hearings, India scores over EC, South Africa and Pakistan by requiring a compulsory hearing.
The One of the most sacrosanct principles of natural justice – the legal maxim of audi alteram partem, requires that no person shall be condemned or punished unless such person is heard. Oral hearing or one to one meetings with adverse parties forms an important part of this principle, which also finds its way in anti-dumping investigations conducted by member countries of WTO. The Supreme Court of India in Automotive Tyre Manufacturers Assn. v. Designated Authority [see end note 1] has noted the relevance of holding an oral hearing by observing that
“…Even written arguments are no substitute for an oral hearing. A personal hearing enables the authority concerned to watch the demeanor of the witnesses etc. and also clear up his doubts during the course of the arguments.”
However, the provision relating to conduct of oral hearing has been couched in different countries in different manner regulating, through specific provision, the right of parties to an opportunity of making their submissions during such hearing/meetings. Broadly, hearings conducted by different countries cover two aspects:
a) Personal hearing with the investigating authorities; and
b) Hearing/meetings with adverse parties and making written submissions subsequently.
This article seeks to compare the anti-dumping law enacted by few of the Member countries, namely, European Community (“EC”), Republic of South Africa and Pakistan in respect of conducting oral hearing and conclude by comparing the law in these countries with the law adopted by India, to try and understand where India stands in comparison to other Member countries.
European Community
Article 6 of Council Regulation [see end note 2] provides for manner in which anti-dumping investigations are to be conducted by EC. Article 6.5 imposes two pre-conditions for grant of hearing by EC. These are (i) making a written request by an interested party, likely to be affected by the result of the proceeding and (ii) such written request should contain particular reasons why an interested party should be heard. Thus, grant of hearing by EC is not automatic and not generic in nature but puts an onus on the interested parties to justify grant of hearing. The hearing contemplated under Article 6.5 is a personal hearing between EC and the party requesting for such a hearing
In addition to the hearing under Article 6.5, EC law under Article 6.6 also provides for an opportunity to interested parties to meet parties with adverse interests, so that opposing interests may be presented and rebutted. For such a meeting, interested parties need not state reasons for requesting such meeting. It is also made clear that not attending such meeting shall not adversely affect such absent parties and that any oral submission made during the meeting shall be taken into account when it is subsequently confirmed in writing. Article 6.6 also provides an opportunity to interested parties to offer their rebuttals to the submissions of the other party – a provision not provided in other countries.
Republic of South Africa
Similar to EC law, the Anti-Dumping Regulations in terms of Notice 3197 of 2003 issued by South Africa also envisage two types of hearing/meetings – oral hearing and an adverse party meeting/hearing. The South African law also requires a written reasoned request from an interested party and subsequent submissions in written form akin to EC. However South African law differs from EC law inasmuch as the South African law provides that such a request for hearing can be made by an interested party during (i) preliminary investigation phase (ii) final investigation phase or (iii) both [Regulation 5.1]. This peculiar provision is not found in laws of other selected countries. The omission to provide for time line for requesting a hearing increases the probability of requesting multiple number of hearings in such other countries, whether in preliminary phase or final phase or even at the fag-end of the investigation phase.
The Commission may restrict the duration of such hearing and the South African law also requires the party making the request for hearing to provide a detailed agenda and information to be discussed at the oral hearing. [Regulations 5.4 and 5.5]
The process of conducting adverse party meeting is quite similar to the process of conducting an oral hearing, with slight difference being that in case of former, it is the Commission, which decides the final agenda of the meeting. In case of both oral hearing and adverse party meetings, the Commission will not consider any request more than 60 days and no hearing/meeting will be held more than 90 days, after the publication of preliminary findings [Regulation 5.2].
Pakistan
Similar to EC and South Africa, Pakistan’s anti-dumping law [see end note 3] also requires a request by an interested party for conduct of hearing and requires putting the oral submissions into writing subsequent to hearing [Rule 14]. Similar to South African Regulations, Pakistan’s law provides for a time line for holding such meeting or hearing [see end note 4].
But Pakistan’s law seems to be much more interactive than others inasmuch as Rule 14 specifically provides for accommodating the convenience of interested parties [Rule 14(3)] and ensuring that all parties participating get adequate opportunity to present their views [Rule 14(5)]. Pakistan’s law also scores high on account of a rule requiring the authorities to maintain a record of the hearing and place the non-confidential version of the record of the hearing in the public file [Rule 14(6)]. Pakistan’s law also provides that where there is no request for any hearing, an interested party may within 45 days before the date of proposed final determination, submit its written submissions.
Unlike EU and South Africa, though there is no separate law in respect of oral hearing and adverse party meeting here however, Rule 14(7) does allow interested parties to make oral submissions to the Commission during meetings with officials of Commission.
Comparison with Indian law
In comparison to anti-dumping laws of EC, South Africa and Pakistan, the wording of Indian Anti-Dumping law [see end note 5] relating to conduct of oral hearings is obscure and devoid of detailed procedure. The only provision which allows an interested party to make oral submission is Rule 6(6) of Anti-Dumping Rules, which provides that an interested party can present the information orally and also puts a condition that such oral submission will be considered only when it is put in writing.
Just like Pakistan, there is no distinction between personal oral hearing and adverse party meeting. But compared to laws of EC, South Africa and Pakistan, Indian anti-dumping law on hearing does not provide/clarify the following:
(i) Whether a request for hearing has to be made or not.
(ii) When a hearing will take place, i.e., whether it will be conducted before or after preliminary determination.
(iii) There is no provision to maintain minutes of hearing, unlike Pakistan
(iv) There is no provision for providing opportunities to all the parties to offer their rebuttal, unlike EC
(v) There is no provision to request oral hearing at preliminary stage.
But, despite the lack of procedural clarity about the conduct of oral hearings, India scores over EC, South Africa and Pakistan by requiring a compulsory hearing, whether or not it is requested by any interested party. The principle of nature justice in the form of Audi Alteram Partem is too holy a concept to be messed with, as failure of grant of hearing may lead to setting aside of entire investigation!
[The author is a Senior Associate, Lakshmikumaran & Sridharan, New Delhi]
End Notes:
- 2011 (263) E.L.T. 481 (S.C.)
- Council Regulation (EC) No 1225/2009 of 30th November 2009 on protection against dumped imports from countries not members of the European Community
- Notification S.R.O. 203(I)/2001, dated 31st March 2001
- Rule 14(1) - Requesting hearing not later than 30 days after publication of preliminary determination; Conduct of such hearing not later than 60 days prior to the date of proposed final determination.
- Section 9A of Customs Tariff Act, 1975 read with Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 [“Anti-Dumping Rules”]