Anti-dumping investigations in Ukraine, Antidumping measures in Ukraine, dumped imports in Ukraine

General overview.
The basic law in Ukraine in the field of anti-dumping investigations is the Law of Ukraine "On Protection of National Producer against Dumped Imports" (the Act).

This Act establishes the mechanism of protection of the national producer against dumped imports, principles, procedure for initiating and conducting antidumping investigations and applying antidumping measures. Act shall be applied to the import of goods, which are the subject of dumping, provided such import causes damage to the national producer of similar goods.

The goods shall be considered a subject of dumping where their export price in Ukraine is lower than a comparable price of similar goods in the exporting country in traditional trade operations.
The antidumping investigation in Ukraine shall be performed under the provisions of this Act by the authorized central bodies of executive power — the Ministry, State Customs Service of Ukraine (hereinafter — the Service) and the Commission. Antidumping investigations shall be carried out in the state language of Ukraine, which is Ukrainian.

Definition of key terms:
1) antidumping measures — preliminary or definitive measures, applied in the process of an antidumping investigation;
2) antidumping duty (provisional or definitive) — special type of duty imposed on goods, imported into the customs territory of Ukraine, subject to application of antidumping measures (preliminary or definitive);
3) positive conclusion as to the presence of dumping (damage) — conclusion on the presence of a fact of dumping (damage);
4) negative conclusion as to the presence of dumping (damage) — conclusion on the absence of a fact of dumping (damage);
5) dumping — importation of goods into the customs territory of Ukraine at lower prices than the comparable prices for similar goods of exporting country, which causes damage to the national producer of similar goods;
6) dumping margin— amount to which the normal value exceeds the export price. The procedure of determining the dumping margin;
7) export price — a price, which is actually paid or subject to payment for goods being sold to an importing country from the exporting country;
8) damage — substantial damage caused to the national producer or a threat of substantial damaging to the national producer or substantial impediment to the creation or expansion of production of similar goods by the national producer.
9) import — bringing into the customs territory of an importing country of goods, destined for consumption within this importing country;
10) importer — a subject of economic and legal relations who declares the goods' supply to the customs territory of Ukraine;
11) Exporting country — a country of origin of goods, imported into Ukraine. An intermediary country (customs union or economic group) may be an exporting country as well, except in cases, where the specified goods are conveyed as transit through this country, are not produced in this country or these goods have no comparable price in this country;
12) country of origin — a country (customs union or economic group) in which the goods have been manufactured in their entirety or subject to sufficient processing or treatment;
13) National producer — an aggregate number producers of similar goods or those producers whose aggregate production of such goods constitutes the major proportion of the total amount of production of such goods in Ukraine.
14) normal value — equivalent of the goods' price in the domestic market.
15) parties of an antidumping investigation — a foreign producer, exporter, importer, union (association), competent authorities of the exporting country, national producer etc., which have been notified of the initiation of an antidumping investigation according to the established procedure;
16) interested party — any person notifying the central body of executive power in the field of economic policy (hereinafter — the Ministry) of his interest in participation in an antidumping investigation. The following may be the interested parties:
a foreign producer, exporter or importer of goods subject to an investigation, or union (association), where the majority of members make foreign producers, exporters or importers of goods subject to an antidumping investigation;
the competent bodies of an exporting country of goods subject to an investigation;
a national producer, manufacturer or wholesale seller of similar goods in Ukraine;
a union (association) where most of its members produce or perform the wholesale trade of similar goods in Ukraine;
a trade union, uniting the employees of enterprises producing or performing a wholesale trade of similar goods in Ukraine;
bodies of executive power of Ukraine within the scope of their authority;
21) similar goods — identical goods i.e. alike in terms of all features on goods subject to an investigation, or in the event of the absence of such goods, other goods, which though are not alike in terms of all features, have indicative signs, closely resembling those of the goods subject to an investigation.

Determining the normal value
Generally a normal value is determined on the basis of prices, established in the process of a traditional trade operation between the independent buyers of the exporting country.
Sales and operations may be deemed those which have not been completed within the traditional trade operations, where:
such sale or operation have features, which are exclusive for the market subject to an investigation;
sales of goods are carried out at prices that considerably differ from those, practiced in the market; with extra large profits;
under not usual conditions of sales and (or) sales to the party who is a partner or has concluded the compensation agreement;
or at prices, determination criteria of which are different from the mechanism of functioning in the market economy.
Where an exporter does not produce or sell similar goods in the exporting country, the normal value shall be determined on the basis of prices established by other sellers or producers.
The prices, established between the parties, which are partners or concluded into the compensation agreement, may be treated as those, not practiced in the traditional trade operations and may be unused for determining a normal value, provided it is established that such prices have no effect upon mutual relations between the parties.
In order to determine a normal value, the sales volume of similar goods, destined for consumption within the domestic market of the exporting country, shall be used provided such a sales volume is not less than 5 % of the sales volume of such goods in Ukraine. In order to determine the normal value the sales volumes of the similar goods that are less than 5 % of the volume of sales of such goods in Ukraine shall be used, on condition that the established prices are deemed indicative in the market subject to consideration.
If there were no sales of similar goods in traditional trade operations or such sales were not substantial, or due to the peculiarities of the domestic market of the exporting country, or such sales cannot be used for the proper comparison, a normal value of the similar goods shall be determined by means of one of the following methods:

1) on the basis of the production costs in the country of origin, increased by the grounded amount of trade, administrative and other general costs and the grounded profit amount;
2) on the basis of export prices, practiced in the traditional trade operations in a corresponding third country, provided such prices are considered indicative.

Determination of export price
The export price of goods is a price, which is actually paid or is subject to payment, for goods from the exporting country, which are sold in Ukraine.
In the event that the export price is not established or is deemed ungrounded (due to the presence of partnership or compensation agreement or an agreement between the exporter, importer or the third party), the export price may be established:

1) on the basis of the price at which the imported goods are first resold to an independent buyer; or
2) any other acceptable, grounded basis, provided the goods are not resold to an independent buyer, or are not resold in the conditions: in which they have been imported.

The costs, subject to adjustment, shall normally include:
1) transportation, insurance, and shipment costs as well as additional costs;
2) customs duty, antidumping duty, other taxes and fees (compulsory payments), charged on the import or sale of goods;
3) grounded amounts of trade, administrative and other general costs as well as profits.

Determining a dumping margin
In order to determine the dumping margin, the normal value, shall be compared with the export price. Such a comparison shall be performed on the basis of identical basis of delivery terms (normally FOB plant) for the sales, carried out on the closest date, pursuant to which the corresponding information is available. The basic delivery terms shall be determined according to the International rules of interpretation of commercial terms INCOTERMS in the wording, which is valid as of the date of importation of goods into Ukraine. The dumping margin shall be determined through comparison of the normal cost and the export price. The difference by which the normal value exceeds the export price shall be the amount of the dumping margin.
An adjustment as to calculation of amounts of differences in the factors stated below which affect the comparability of prices shall be carried out under such rules with respect to:
1) physical features.
2) taxes and fees (compulsory payments) charged on the imports.
3) rebates and sales volumes.
4) basic terms of delivery.
5) transportation, insurance, loading (unloading) costs and additional costs.
6) packaging costs.
7) costs of credit.
8) after-sale costs.
9) commission fee.
10) currency conversion costs.

Determining damage
In the process of investigation the presence and the size of damage, caused to the national producer in one of the following forms, shall be established:
1) considerable damage, caused to the national producer;
2) threat of infliction of considerable damage to the national producer;
3) substantial impediment to the national producer in launching or expanding the production of similar goods subject to consideration.
Establishing the presence of damage shall be based on evidence and involve an objective investigation. Damage caused by the dumped imports, shall be proved in the process of investigation by providing corresponding evidence, which concern a certain antidumping investigation, and which is forwarded to the Ministry.

The following factors shall be taken into account while determining the threat of substantial damage:
1) a significant rate of growth of dumped imports into Ukraine, which is evidence of considerable growth in import volumes;
2) sufficient export potential at the exporter's disposal or its inevitable and considerable growth, which is evidence of a probable considerable growth of volumes of dumped exports in the Ukrainian market with consideration of other export markets to which additional exports may be supplied;
3) supply of imports into Ukraine, which may have a considerable effect, resulting in price-cutting or substantially prevent an increase in prices and cause a probable growth in demand for the new imports;
4) inventories of goods of foreign origin, subject to an investigation.

Initiation of an antidumping procedure. Antidumping investigation
An investigation aimed at identifying the presence and the impact of dumping which is said to have taken place, as well as the amount of a dumping margin shall be introduced by the Ministry by initiating an antidumping procedure upon a complaint, submitted by national producer. The Ministry shall initiate an antidumping procedure, in the process of which the evidence, provided in the complaint, shall be considered, in order to identify whether it is sufficient for the initiation of an antidumping investigation.
The Commission shall, in its decision on the initiation of an investigation, authorize the Ministry to:
1) immediately start an antidumping investigation;
2) publish information on initiation of an investigation in the publishing body of the Cabinet of Ministers of Ukraine.

The Ministry shall notify the exporters, importers, the known unions (associations) of importers or exporters, competent bodies of the exporting country and the applicants of initiation of an antidumping investigation. Together with the notification on the initiation of an antidumping investigation, the Ministry shall send to the known exporters, importers, other parties of an antidumping investigation, which the Ministry considers necessary to be involved in the investigation or to the competent bodies of exporting countries, questionnaires with aim of obtaining information and evidence which shall be used in the process of an antidumping investigation. Answers to the specified questionnaire shall be forwarded to the Ministry within 30 days from the day of its receipt.

Antidumping Measures
The provisional antidumping measures shall be applied upon the Commission's decision not earlier than after 60 days and not later than nine months from the date of initiation of the corresponding antidumping investigation. Not later than 10 days prior to the possible date of application of the provisional antidumping measures, the Ministry may inform the interested parties of its grounds that in the opinion of the Ministry, necessitate submission of the proposal on application of the said measures to be considered by the Commission.

The provisional antidumping duty shall be paid in a cash or non-cash form or through remitting a duty amount to a deposit account, or through a relevant debt commitment, unless otherwise stipulated by Ukrainian legislation.

The rate of a provisional antidumping duty shall not exceed the preliminarily calculated amount of a margin of dumping and shall be lower than the amount of such margin on condition that the duty rate is sufficient to prevent the damage caused to the national producer.

The definitive antidumping duty shall be collected in the relevant amount in each case individually and on a non-discriminatory basis, irrespective of the exporting country, provided that the Commission has established by its decision that importation of the relevant goods is subject to application of definitive antidumping measures, except imports, with respect to which the exporter assumed the corresponding obligations. In the decision the Commission shall identify each supplier of goods, importation of which into Ukraine is subject to application of definitive antidumping measures. Where an antidumping investigation is carried out with respect to goods, being imported by several suppliers from the same country and it is impossible to identify all these suppliers, this exporting country shall be specified in the Commission's decision. The Commission shall, in its decision, establish the rate of the definitive antidumping duty, charged upon the goods of the supplier (producer, exporter, importer), importation of which into Ukraine is subject to application of antidumping measures. Where it is impossible to identify a supplier (producer, exporter, importer) of such goods, a rate of the definitive antidumping duty for the exporting country shall be established in the decision.

Antidumping measures shall be applied pursuant to the corresponding decision of the Commission within the terms and in the amount, sufficient for liquidation of dumping, causing the damage.

The Ministry shall, at the decision of the Commission, reconsider the anti-dumping measures for determining individual values of dumping margins for the new exporters or producers from exporting countries subject to consideration and who have not exported goods within the period of investigation, under the results of which the antidumping measures have been applied.

An exporter who is importing goods into Ukraine, that are covered by the definitive antidumping duty, who has not been identified as an individual subject of a primary antidumping investigation by reasons, other than refusal to cooperate with the Ministry, has a right to appeal to the Ministry with a demand to initiate accelerated reconsideration of antidumping measures for the purpose of establishing by the Ministry and the Commission the rate of the definitive antidumping duty for the said exporter.

Collection of antidumping duty
A provisional or definitive antidumping duty shall be collected at the rate and under the terms established by a relevant decision of the Commission on application of antidumping measures. The specified duty shall be paid irrespective of the payment of other taxes and fees (compulsory payments), including duty, customs fee and others, generally paid while importing certain goods into the customs territory of Ukraine. The countervailing duty and the antidumping duty shall not be simultaneously imposed as to goods imported by the same supplier.

The Service shall, on a quarterly basis, inform the Ministry and the Commission of the volumes of imports subject to an antidumping investigation or with respect to which the antidumping measures are applied, as well as on the amounts of an antidumping duty, collected according to the relevant decision of the Commission.