1. ) MENTERI KEWANGAN 2. ) MENTERI PERDAGANGAN ANTARABANGSA DAN INDUSTRI 3. ) KETUA PENGARAH JABATAN KASTAM DIRAJA MALAYSIA 4. ) Kerajaan Malaysia v DILER DEMIR CELIK ENDUSTRU VE TICARET A.S. ALSO KNOWN AS DILER IRON AND STEEL CO. INC.

Case Significance

A Federal Court exposition of the anti-dumping framework under the Countervailing and Anti-Dumping Duties Act 1993 and the WTO Anti-Dumping Agreement, holding that a duty-drawback difference does not automatically affect price comparability between normal value and export price so as to require an adjustment under section 18(3).

This Federal Court decision concerns anti-dumping duties, arising from a judicial review challenge to the imposition of anti-dumping duty on reinforcing steel bars originating in or exported from a foreign producer. The appellants were the Minister of Finance, the Minister of International Trade and Industry, the Director General of the Royal Malaysian Customs Department and the Government of Malaysia, and the respondent was the foreign steel producer whose product had been subjected to the duty. The proceedings had progressed from a High Court judicial review through the Court of Appeal to the Federal Court on questions of law.

The subject matter engaged the technical framework of trade-remedies law, including the concepts of export price and constructed export price, related-party transactions, fair comparison, normal value and duty drawback, against the background of the World Trade Organization Anti-Dumping Agreement and Article VI of the GATT, as domestically implemented through sections 17 and 18 of the Countervailing and Anti-Dumping Duties Act 1993 (Act 504) and the Countervailing and Anti-Dumping Duties Regulations 1994. The questions of statutory interpretation called for a harmonious construction of the domestic legislation and the treaty framework, and engaged the burden of proof and the domestic implementation of treaty obligations, including the treatment of an inward processing regime and the calculation of the dumping margin.

In its reasoning on the fair-comparison and duty-drawback issues, the court explained that an adjustment for a claimed difference must be substantiated by demonstrating that the difference affects price comparability, and that the existence of a difference does not automatically mean that price comparability has been affected. It reasoned that, even though domestic sales of the subject merchandise did not enjoy a similar duty drawback, the mere existence of a duty drawback for raw materials used to produce merchandise solely for export did not automatically mean that price comparability was affected. Accordingly such a factor did not represent a difference affecting comparability between normal value and export price, and no allowance was permitted under subsection 18(3) of Act 504. The judgment is a significant exposition of the anti-dumping framework and the fair-comparison requirement under Malaysian trade-remedies law.