An anti-dumping investigation may be initiated only upon acceptance of a written application by or on behalf of the domestic industry.456 However, article 5.1 of the ADA displays the proviso that self-initiated investigations by authorities on behalf of domestic industries may occur only in special circumstances.457 The South African ADR. as noted by Ndlovu,458 do not, however, contain any provision involving ‘special circumstances’. Ndlovu thus recommends that the ADR reflect the purpose of the ADA, and insert such a provision in order to prevent an abuse of self-initiated investigations by pertinent authorities.459 The author affirms that retaining this provision would ‘ensure that the standard of proof of the existence of dumping remains high’ that would deter the authorities from initiating arbitrary and ‘WTO-inconsistent self-initiated investigations’.460 Ndlovu further asserts that retaining the self-initiating provisions ‘will come in handy’ in the foreseeable future when circumstances demand that such provision be utilised.461
455 Lowenfeld A, International Economic Law (Oxford: Oxford University Press) (2002), p 268. 456 Article 5.1 of ADA. 457 article 5.6 of ADA. 458 Ndlovu at p 36. 459 Ibid. 460 Ibid. 461 Ibid.
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This thesis agrees with the recommendations put forth by Ndlovu, as controlling the manner in which self-initiated investigations are implemented can be the start of bringing South Africa more in line with its free trade obligations. It is furthermore submitted that embarking on the course of making the ADR more WTO compliant could set off a gradual chain of events that could deter South Africa from using the ADA as a veiled protectionist tool. It can, in addition, be argued that the lacunae contained in the ADR enable the South African authorities to engage in protectionist actions, without totally being called to action by the WTO, because the ADA has not been promulgated into domestic law by Parliament. Thus, it is moreover recommended that ensuring compliance of the ADR with WTO obligations could bring an end to South Africa’s overzealous protectionist actions.
However, in matters where protectionist tools are used in excess, such actions should be disciplined in the appropriate manner. Referring to Chapter 4, the research found that South Africa has been incredibly delayed in controlling the dumped imports of chicken by the EU that have led to the shut-down of the poultry industry, but embodied a robust approach to the US market dumping poultry some years before. This chapter recommends that civil societies need to be proactive in scrutinising their actions and behaviour when it comes to dumping in general, and should not react in different ways to different international markets.
This research has found that South Africa, as well as other developing countries, has embodied a protectionist stance where foreign imports are concerned, as a reaction first, to developed countries employing their own antidumping duties, thereby restricting developing countries market access; and second, to lock out international competition entirely. This thesis ultimately recommends that in certain circumstances, protectionism is warranted. It should be noted that much like dumping, protectionism is condemned and not outlawed. The research thus submits that protectionism can be employed where the situation warrants it. Where domestic industries are under threat of being eradicated or suffer injurious effects as a result of dumping, a country may then embark on trade-restrictive barriers in order to protect the pertinent industries.
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5.5 CONCLUSION
In light of the facts presented, the research has unequivocally found that the ADA was primarily enacted to provide relief to those countries who were gravely affected by dumping and its injurious effects on their respective domestic industries. As a further rationale for its enactment, the ADA was also promulgated in order to control the usage of antidumping duties that can be imposed in circumstances that call for it, provided certain criteria are met. While developed countries became the forerunner in implementing antidumping duties in its inception years, it became apparent post 1980 that developing countries had begun to assert their force and started their own antidumping actions, but were then criticised for using the ADA as a protectionist tool, South Africa being one of the main users in this regard.
As such, this thesis ultimately finds that free trade is obligatory in order to bring together a harmonisation of the multilateral trading system, but protectionism is necessary in particular circumstances, thereby achieving a balance between free trade and protectionism. The research submits that the exclusion of one would be too much of a radical approach which could lead to adverse effects and undermine the development capacity of countries such as South Africa. Therefore, this thesis recognises that there is a tough balancing act of these two principles in that South Africa, as Member to the WTO, has to make sure that it complies with such provisions and in terms of the ADA. If South Africa does so, and refrains from taking a robust role in respect of protectionism, this thesis ultimately submits that there is room for both free trade and protectionism in the multilateral trading sphere, and employing such measures where necessary, but adhering to international obligations.
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BIBLIOGRAPHY