Anti Dumping Dispute in Indonesia

Like any other litigation in other areas of laws, anti dumping measure may be challenged. Article 13 of the WTO Anti Dumping Agreement provides that:

“Each Member whose national legislation contains provisions on anti‑dumping measures shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review of administrative actions relating to final determinations and reviews of determinations within the meaning of Article 11.  Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question.”

The principle laid down by Article 13 reflects the principle or rule of local remedies which must be available related to international disputes which has been accepted as a customary rule of international law. The rule has been affirmed in recent diplomatic practice, particularly by developed countries against whom or in regard to whose nationals the rule is most likely to be invoked in regard to the protection of aliens.[1]

The Article 13 suggests that anti dumping determinations may basically be challanged and for those purposes, each Member shall set up system of review of those determinations or review.  Thus, it is left to each Member how to address such review under their legislation system.

Somehow due to the characteristic of anti dumping system, it creates difficulty in certain Members’ countries in determining who are the eligible parties to challange the imposition of anti dumping duty or determinations.  Whether it is only exporters or producers who are eligible to challange or importers, domestic industries, domestic associations or other domestic interested parties as well? Exporters or producers of course are the most affected parties in the imposition of anti dumping duty. However, domestic industries should have the rights as well if no imposition is made in their favor.

Dispute Resolution Under Old ADCVD Regulation

On 22 January 1999, Indonesian Government has notified Committee on Anti Dumping on the enactment of judicial review system as the implementation of Article 13 of the WTO Anti Dumping Agreement. [2] It was said that:

In order to implement Article 13 of the Agreement on Implementation of Article VI of the GATT 1994 (Agreement on Anti-Dumping) regarding “Judicial Review”, I wish to inform you that based on Law No. 17/1997 dated 23 May 1997 and Presidential Decree No. 41/1997 dated 7 October 1997, Indonesia has established a Tax Dispute Settlement Board as a Judicial Review Body for settlement of tax disputes.

In the reply to Questions Posed by the United States [3] and Argentina [4] regarding the notification of Indonesia above [5], it was responded by Indonesia that:

“The Tax Dispute Settlement Board has the full jurisdiction over the decisions of the Indonesian Anti-Dumping Committee.” 

Notwithstanding to the official notification of Indonesia above, on 12 April 2002, the Tax Dispute Settlement Board had been replaced by the Tax Court (Pengadilan Pajak) which established based on the Law No 14/2002.

Pursuant to Article 31 paragraph (1) of the Law No 14/2002, the jurisdiction of the Tax Court is limited to review and make determination on what-so-called “Tax Dispute”.[6] Furthermore, Tax Dispute is defined as a dispute in the area of taxation between Tax Payor or tax obligor and  the competent authority as a result of the issuance of a decision which is appealable or which may be claimed in the Tax Court based on the prevailing taxation regulation including claim against the the implementation of tax collection. [7]

Based on the foregoing, it is only Tax Payor or tax obligor has legal standing to litigate before the Tax Court (Pengadilan Pajak). Pursuant to Law No 16/2000 concerning the latest amendment of General Regulation on Taxation, the term “Wajib Pajak” is defined as follows as individual or legal entity which pursuant to the taxation regulation is obligated to fulfill tax obligations including to withhold or collect certain taxes. [8] Thus, producers or exporters would have no legal standing to appear before the Tax Court (Pengadilan Pajak) and to request for the review on the final determination of KADI or the imposition of anti dumping duty simply for the reasons that they are neither tax payor nor tax obligor with respect of the anti dumping duty imposition.

Before 2004, imposition of anti dumping duty was made by the instrument of “decree” (keputusan) of the Ministry of Finance. However, since then, imposition was made by the instrument of “regulation” (peraturan). The idea of the change is because under the Indonesian administrative law, a “decree” (keputusan) shall have characteristics of individual and final and not binding public, while “regulation” (peraturan) generally binds public. The anti dumping duty, when imposed, shall be applicable for all persons in the Indonesian territory who importing subject goods and this can only be achived by the enactment of “regulation” (peraturan) and not “decree” (keputusan).

It is very normal that since the imposition of anti dumping measure would most likely prevent the producers to export their products to the imposing Member, the producers or exporter or importers may challenge the imposition of anti dumping measure by the investigating Member.

For this purpose, WTO anti dumping system provides 2(two) types of recourse for producers or exporters whose products are subject to such measure.

The first recourse is provided by DSU when the anti dumping measure is imposed not in accorance with or in consistent with the WTO Anti Dumping Agreement. In this regard, producer must bring the case to its government in order for its government to bring the issue to WTO Dispute Settlement Body. GATT/WTO disciplines in respect of anti dumping not only identify the substantive condition of the measure, but also regulate the process leading to the judgment whether to impose such measure. [9] Thus any violation in the substantive condition or the process of anti dumping impostion may be considered as violation of WTO Anti Dumping Agreement.

As implementation of the Article 13 of the WTO Anti Dumping Agreement, Members shall set up its system of judicial, arbitral or administrative tribunals or procedures. In the European Communities, for example, objection or challange to the final determination by the DG may be brought to European Court of Justice. Similarly, in the United States, the final determination of anti dumping by the Department of Commerce may be brought to the Court of International Trade.

Anti Dumping Dispute Resolution under ACSM Regulation

Under Article 99 paragraph (1) of the ACSM Regulation, it is stated that:

“(1)      Keberatan terhadap penetapan pengenaan Tindakan Antidumping, Tindakan Imbalan, dan Tindakan Pengamanan, hanya dapat diajukan kepada Badan Penyelesaian Sengketa (Dispute Settlement Body) pada Organisasi Perdagangan Dunia (World Trade Organization).”

(2)  Objection to the imposition of Anti Dumping Measure, Countervailing Measure and Safeguard Measure, shall only be submitted to the Dispute Settlement Body of the World Trade Organization).

The above article simply means in the event producer-exporter, exporter, importer or other interested party does not agree with the imposition of anti dumping measure (which in the form of the Minister of Finance’s “regulation”), it may only be able to bring its case to its government for further brought to and disputed in the WTO Dispute Settlement Body.

Article 99 (1) ACSM Regulation Inconsistent with Article 13 of the WTO Anti Dumping Agreement?

As stated earlier, under Article 13 of the WTO Anti Dumping Agreement provides, each Member is obligated to maintain judicial, arbitral or administrative tribunal or procedures for the purpose, inter alia, prompt review of administrative actions relating to final determination and reviewes of determination within the meaning of Article 11. In view of teh Article 99 paragraph (1) of the ACSM Regulation, it means that that no judicial, arbitral or administrative tribunal shall be formed as implementation of Article 13 of the WTO Anti Dumping Agreement as any objection to the imposition of anti dumping measure  shall only be submitted to the DSB-WTO.

In view of the foregoing, in this regard Indonesia has to clarify its position on its obligation to implement Article 13 of the WTO Anti Dumping Agreement post the implementation of ACSM Regulation.

Jakarta, 06 April 2018

The above article is written by our member A. Setiadi of 36 Sovereign Chambers. The article set out above is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.

36 Sovereign Chambers is a set of Indonesian advocates’ chambers specialising in international trade law, international investment law and international arbitration with focus on Indonesian related litigation and ASEAN related arbitration in those areas. Its members  has expertise and deep understanding on international trade law including trade remedies such as anti dumping, countervailing and safeguard.

For more information about the article, please contact the author:

A Setiadi | Advocate-Barrister
36 Sovereign Chambers
Sovereign Plaza, 21st Floor
Jl. T.B. Simatupang Kav. 36, Jakarta 12340
Email: as@36sovereignchambers.com.