By Hansa Sinha
Anti-circumvention laws have been primarily publicized by the Copyright Regime. Under this the technological barriers for using a digital good in a certain way cannot be circumvented. This is primarily the take of right holders and the kind of technological barriers they have imposed to their products. This may be applied in case of password protected websites etc. The law to my knowledge is properly codified through the WIPO Copyright Treaty.
In a similar manner Anti-circumvention also applies in case of Anti Dumping Laws. Let’s take an example. India has imposed anti dumping duties on certain Cars from a company in Country A. The company in Country A may shift its production to Country B or Country C. Alternatively, it may decide to establish a company in India and not export cars, but export different components and parts of the car so that all the components after reaching India can be assembled into the same car as intended. Only this time there would be no anti dumping duty. By doing this the company in Country A is circumventing its duties. To put such practices in check some countries like EU, USA, Argentina including India have put in place an Anti-circumvention framework. The reason for only few countries to adopt this and that too unilaterally is that as of today there is no concrete place for Anti-Circumvention under GATT. The issue had been examined by the Committee on Anti dumping Practices but it did not yield any fruit (Proposal).
In, 2002, FICCI (Federation of Indian Chambers of Commerce and Industry) made such a proposal. FICCI thought that India faced the threat of circumvention especially by the foreign producer countries resorting to third countries. It had found EU Model to be most appropriate and cited the need for Indian legal provisions on the same lines. This proposal/statement of FICCI was thought to be in the aftermath of Nitrile Rubber Case from Japan. In that case it was found that after India imposed duties on the Nitrile Rubber from Japan, the same found its way through Korea. This resulted in decline of Nitrile Rubber imports from Japan and significant increase of the same from Korea. After that proposal one can only imagine the long tussle it would have been between the Indian industry and the Indian government before the actual anti-circumvention provisions came into being in 2012. The Indian Anti Dumping provisions are set in some provisions of the Customs Tariffs Act, 1975 such as sections 9A, 9B and 9C and the Anti- dumping rules, also known as Custom Tariff (Identification, Assessment and Collection of Anti-dumping Duty of Dumped Articles and for Determination of Injury) Rules, 1995. Yeah, I know! So well , the anti circumvention law was first introduced by inserting sub-section 1A into Section 9A and thereafter four new Rules 25 to 28 were added to the Anti-Dumping Rules.
Since, the law has recently been introduced; there have been no cases of Anti-Circumvention yet in India. The Ministry of Commerce has put into place an Anti circumvention Investigation Questionnaire. It’s a short questionnaire with about 13 questions pertaining to grounds of circumvention, name and other details of the applicant, evidence of imports etc. We are eagerly waiting to see how and when this Questionnaire is utilized. After all only a law in place cannot take care of the circumvention problems of a developing country such as ours. But then, I can only wonder, that if winter comes…can spring be far behind?