Anti-dumping measures are part of a defensive toolkit used by members of the World Trade Organization (WTO) to protect their domestic producers from the effects of injurious dumping. However, the levy of such measures may negatively impact other stakeholders of a given industry, such as users, importers, upstream suppliers and final consumers. To balance the competing interests of these stakeholders and prevent any negative impact on the broader trade and economy, several WTO member countries like the European Union (EU), Canada, China, and Ukraine have introduced public interest clauses under their national legislations. Public interest assessments allow the importing country to decide if the imposition of anti-dumping measures is not in the larger public interest, despite dumping, injury, and casual link. In India, in the recent past, post Covid 19, the Ministry of Finance has not been imposing duties on a host of products recommended for anti-dumping duties mainly due to issues concerning public interest of users.
Public Interest Assessments in WTO Member Countries
WTO member countries utilize differing approaches in how they assess public interest. For instance, the EU conducts a union/public interest test in each investigation prior to deciding on the imposition of anti-dumping measures. According to EU law, the union interest test requires an appreciation of the various interests in the EU, taken as a whole by analyzing the likely economic impact of the imposition or non-imposition of measures on the stakeholders in the EU. While assessing the union interest test, the EU considers the information filed by various parties, including users in the form of user questionnaire responses.
On the other hand, Canada, after issuing a finding on injury caused by dumped imports, can initiate a separate public interest inquiry. If the concerned authority finds reasonable grounds, a detailed inquiry is conducted whereby detailed information is collected, and an assessment of specific public interest factors (including economic and non-economic factors)as specified under Canada’s corresponding legislation are assessed. Pursuant to such an inquiry, a recommendation on whether the measures should be eliminated/reduced is made by the concerned authority to the Ministry of Finance, who, in turn, can make the final decision.
Evidently, the EU and Canada (amongst others) have incorporated public interest provisions in their respective local laws. Under the Indian legal framework, there are no specific provisions that pertain to the larger public interest. Nevertheless, the Indian Directorate General of Trade Remedies (DGTR), frequently examines public interest as part of its investigative process. However, due to an increasing number of cases where the user industries have made strong cases for the consideration of public interest, the DGTR is now considering a more structured approach to the public interest.
On December 21, 2021, the DGTR issued a proposal to introduce a comprehensive questionnaire response to assess public interest in trade remedy investigations. The questionnaire formats cover various aspects of public interest and invite Indian stakeholders to provide detailed evidence to substantiate their public interest concerns. However, there are certain procedural and substantive threshold issues that India needs to address before formally incorporating these public interest questionnaire responses and any other such examinations on public interest.
The Process of Levy in Indian Investigations
In India, anti-dumping investigations are a two-tier procedure, which is in the form of objective and reasoned recommendation followed by further examination and issue of notification, i.e., an act of delegated legislation, which is necessary to impose and levy anti-dumping measures. The DGTR, being a quasi-judicial body, presents its recommendation to the Ministry of Finance upon the perusal of evidence and responses received from various parties over the course of an investigation. The decision to levy (or not levy) the anti-dumping measures recommended by the DGTR ultimately rests with the Ministry of Finance. If the Ministry of Finance decides to levy the recommended anti-dumping measures, a customs notification is issued to such effect, and duties are applicable from the date of such notification. If the Ministry of Finance decides not to levy such measures, it can either refrain from issuing any such notification or issue a memorandum reflecting its decision not to levy the anti-dumping duty.
The relevant provisions, i.e., Rules 4 and 17 of the Customs Tariff (Identification, Assessment, and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (Indian AD Rules), do not require the DGTR to consider public interest prior to recommending the anti-dumping measures. Rule 17 of the AD Rules only require the DGTR to recommend the measures necessary to remove the injury to the domestic industry on account of dumping. At the same time, AD Rules do not preclude the DGTR from considering public interest while recommending imposition or non-imposition of anti-dumping measures. Indeed, the DGTR, in various recent final findings, has been considering and examining the public interest while concluding whether the imposition of the duties would be in the public interest. However, the DGTR is not empowered to “not recommend anti-dumping measures” solely on public interest grounds. Based on the duties of the DGTR identified under Rules 4 and 17 of the AD Rules, in the event that the DGTR finds the existence of dumping, injury, and causal link between dumping and injury, the DGTR is compelled to recommend duties even if it finds that such a recommendation would be contrary to the public interest. In fact, any recommendation of the DGTR to not levy duties solely on the ground of public interest would be contrary to its obligations under Rules 4 and 17 of the AD Rules and may be susceptible to appellate/writ challenge as being ultra vires of the AD Rules.
THE NEED FOR A LEGISLATIVE AMENDMENT UNDER INDIA’S AD RULES
As the AD Rules do not expressly warrant the DGTR to consider public interest while making a recommendation, it would be advisable for India to first incorporate the necessary legislative amendments in the AD Rules to empower the DGTR to consider the public interest before deciding on whether to recommend or not to recommend imposition of anti-dumping measures. Given the subjectivity of the public interest analysis, there needs to be some certainty on the concept of public interest while considering the public interest. Accordingly, India may consider defining the broader parameters and framework to assess public interest to add further objectivity to the process before the DGTR. The provisions and factors maintained by the EU and Canada may be considered while making necessary legislative amendments to the AD Rules. This will minimize the ambiguity surrounding the contours of public interest in India and the scope of powers sought to be exercised by the DGTR while assessing public interest before recommending imposition of anti-dumping measures.
Until such necessary amendments are incorporated, the recommendations and the findings of the DGTR, for instance, not to impose anti-dumping measures solely on public interest concerns, may be subject to challenge before the courts or tribunals in India on the ground that such an examination by the DGTR is ultra vires of the AD Rules. Indeed, the DGTR, on 6 June 2018, proposed amendments to Rule 17 (b) of the AD Rules to allow the DGTR to assess if imposition of the anti-dumping measures is found to be in the public interest. While the Indian legislature did not give such amendments effect, India should take recourse to the public interest clauses and practice in the EU and Canada and make amendments to its anti-dumping legislation to define the broader parameters and framework to assess public interest.
Alternately, the DGTR can, as a quasi-judicial body collecting and examining evidence, can be allowed to make an observation on public interest as part of its finding without letting its final recommendation on imposition of duties getting affected by such an observation on public interest. The detailed examination of public interest can continue to be considered by the Ministry of Finance as it currently does – whose powers are broader under Section 9A of the Customs Tariff Act, 1975 and Rule 18 of the AD Rules before issuing the final notification levying the anti-dumping measures.
 Replies of the European Communities to the List of Questions Posed by Members on the Application of the Lesser Duty Rule and Consideration of Public Interest, G/ADP/AHG/W/114, dated 11 April 2001.
 Trade Defense Instruments, Anti-dumping and Anti-subsidy, A Guide for Small and Medium-Sized Businesses, European Commission, 2018, available at: https://trade.ec.europa.eu/doclib/docs/2018/may/tradoc_156892.pdf
 Canadian International Trade Tribunal’s Public Interest Inquiry Guidelines, available at: https://www.citt-tcce.gc.ca/en/resource-types/public-interest-inquiry-guidelines.html#26
 Section 40.1 (3) of the Special Import Measures Regulations
 Supra at fn. 4
 Stakeholder Consultation-Proposal for Public Interest Questionnaire, available at:
 Jindal Poly Film Ltd Vs. DA, 2018 (362) E.L.T. 994 (Del.)
 Rule 17 of the AD Rules reads as follows: “17. Final findings. – (1) The designated authority shall, within one year from the date of initiation of an 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 –
(a) as to, –
(i) the export price, normal value and the margin of dumping of the said article;
(ii) whether import of the said article into India, in the case of imports from specified countries, causes or threatens material injury to any industry established in India or materially retards the establishment of any industry in India;
(iii) a causal link, where applicable, between the dumped imports and injury;
(iv) whether a retrospective levy is called for and if so, the reasons therefor and date of commencement of such retrospective levy:
Provided that the Central Government may, in its discretion in special circumstances extend further the aforesaid period of one year by six months:
Provided further that in those cases where the designated authority has suspended the investigation on the acceptance of a price undertaking as provided in rule 15 and subsequently resumes the same on violation of the terms of the said undertaking, the period for which investigation was kept under suspension shall not be taken into account while calculating the period of said one year,
(b) Recommending the amount of duty which, if levied, would remove the injury where applicable, to the domestic industry after considering the principles laid down in the Annexure III to rules.” [Emphasis supplied]
 The Apex Court in Rohitash Kumar and Ors. Vs. Om Prakash Sharma and Ors., AIR 2013 SC 30 has noted that the courts lack the power to either add or subtract a word from the provision or by construction make up for any deficiencies in an Act.
 India must clarify if the concept of public interest would be applied like in the case of EU and Canada, where the public interest clauses are characterized as negative clauses, whereby, the levy of duties can be avoided but only if it is found that the imposition of anti-dumping measures are not in the public interest. In the event that the position which India seeks to take is characterized as a positive clause, which would require positive evidence that imposition of anti-dumping measures is in the interest of the public / industry is required, the same must be clarified.
 Stakeholder Consultation-Proposal for change in Indian Anti-dumping and Anti-subsidy rules, available at: