TATA CHEMICALS vs ITAC: Anti-dumping duties of disodium bicarbonate (soda ash) from the USA - Court Case No. 48248/2020

02 May 2023

In relation to the matter Tata Chemicals South Africa (Pty) Ltd v International Trade Administration Commission and Others which was heard by the High Court of South Africa (Gauteng Division, Pretoria) on 31 January 2023. The application for review by Tata Chemicals sought an order setting aside ITAC’s imposition of anti-dumping duties of 40% on its importation of disodium carbonate, also known as soda ash, from the United States of America. The application was dismissed by the High Court, which awarded ITAC and other respondents a cost order.

In the underlying sunset review investigation, ITAC was required to determine whether the expiry of anti-dumping duties that had been imposed on imports of soda ash would likely result in injury (economic harm) to the local (SACU) producer of that product, Botswana Ash (Pty) Ltd. After a lengthy investigation, ITAC determined, based on the facts before it, that the expiry of the duties would likely result in injury to Botswana Ash. However, because Tata Chemicals made the decision not to participate in the sunset review investigation and therefore did not provide information to allow ITAC to calculate a specific duty for Tata Chemicals, ITAC recommended the termination of the company specific dumping duty that had applied to Tata Chemicals and that the anti-dumping duty of 40% be maintained, which would be applicable to all imports of soda ash from the USA, including those of Tata Chemicals.

Tata Chemicals challenged ITAC’s decision to impose anti-dumping duties on its imports of soda ash on three grounds. The first ground asserted by Tata Chemicals was that ITAC had commenced the sunset review investigation too late, meaning only after the duties had allegedly already expired. The second ground advanced by Tata Chemicals was that there were insufficient facts for ITAC to conclude that the expiry of the anti-dumping duties would likely result in injury to Botswana Ash. Finally, Tata Chemicals also argued that imposing a higher duty of 40% on its imports instead of the 8% that had been imposed in the original investigation was fatally flawed because the anti-dumping regulations that governed ITAC’s sunset review investigation did not allow ITAC to increase duties.

In rejecting Tata Chemicals arguments, the High Court found ITAC had conducted a proper investigation, aligned with the facts before it and in accordance with the anti-dumping regulations that governed its investigation.

A significant consideration in the Court’s decision was the failure of Tata Chemicals to actively participate in the sunset review investigation unlike its participation in the original (first) investigation. The Court noted that the anti-dumping regulations specifically provided that where a foreign producer fails to co-operate in an investigation by providing required information, ITAC could rely on other facts in reaching its final decision, in this case the facts presented by Botswana Ash.

Finally, the Court also upheld ITAC’s interpretation of the anti-dumping regulations, in particular whether ITAC could increase the level of anti-dumping duties in a sunset review investigation and at what point in time ITAC had to commence a sunset review investigation.

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TATA CHEMICALS vs ITAC (48248/2020)