Proposal

Name of Student

Name of Institution

A Proposal to Test the Validity of the Public Interest Inquiry Criteria Used by the Canadian International Trade Tribunal (CITT) Focusing on the Circular Copper Tube Decision

Introduction

CITT is the Canadian body that determines whether the imposition of countervailing measures and anti-dumping duties should be reduced, maintained or eliminated. It reports to the Minister of Finance pursuant to the Special Import Measures Act (s.42). The Parliament enacted the provision following consumer concerns that full margin levies of dumping duty resulted to higher costs of products for consumers and adversely affected competition in Canada. The public interest test sprang in light of these concerns. However, the legislation provides no definition of “public interest” hence it is left to CITT’s discretion to determine the definition as witnessed in the Circular Copper Tube decision (2014).

Statement of Purpose

Because unfettered discretion could derail the objectives of CITT and erode public confidence in it, there is the need to test the validity of the criteria used by CITT to warrant public interest enquiries. The factors outlined in the Act will be weighed against internationally recognized standards to ascertain their credibility. Moreover, the Act gives room for CITT to take into account any other relevant factors, a situation that calls for scrutiny into the possible loopholes that might arise in such imprecise modes of operation.

Importance of the Study

The study will prove that although players in the industry see “public interest” as a concept deserving strong support, there are many underlying issues that should be taken into account by CITT in the determination of a public interest inquiry. It would go against procedural fairness and good public policy not to have specific criteria on determining public interest and how to allocate weight to the interests of both producers and other players in the industry. An ideal test should find that injury has been occasioned to a domestic industry by dumping, and there is the need for a compelling argument for not imposing measures in such cases due to the public interest consideration.

Criteria that merely list factors are unsatisfactory as whoever determines the need for public interest would need to adopt at a certain view on the importance of industry and exporter interests. Failing to address the issue would trigger intense lobbying by interested parties to include their views on each factor’s relative weight in the absence of an indication of the weight attributed to each factor in determining the respective interests of consumers and the producer.

Any criterion of inquiry must be founded upon the requirement that there is the need for compelling reasons not to roll out measures due to broader issues of public interest. The requirement is crucial as it maintains a degree of integrity for the industry and addresses unfair trade practices. The failure to give greater weight to industry needs that are discovered to be materially injured than the needs of other players would produce unacceptable results for the industry and substantially undermine the entire rationale for anti-dumping. In turn, this would mean that failing to impose measures is largely exceptional, which should not be viewed as a critique to the reduced application of public interest.

List of Jurisprudence

The World Trade Organization Anti-Dumping Agreement

Global Congress Declaration on Fundamental Public Interest Principles for International Intellectual Property Negotiations

CITT Decision – Beer Originating in or Exported from United States of America by or on behalf of Pabst Brewing Company, G. Heileman Brewing Company and the Stroh Brewery Company, their Successors and Assigns, for Use or Consumption in the Province of British Columbia [Opinion No.: PI-91-001]

General Agreement on Trade and Tariffs (Canada membership, 1947)

North Atlantic Free Trade Area (Canada, United States, Mexico) – 1994

Most Favored Nation Treatment under GATT

Non-discriminatory Administration of Quantitative Restrictions – GATT

Qualifications for GATT Exceptions

Chapeau – GATT

Vienna Convention – Treaty Interpretation