ANTI-DUMPING LAWS - DOMESTIC HEALTH SAFETY REGULATIONS AND

STANDARDS

1. Definitions
1.1. Anti – Dumping
Dumping occurs when a company exports a product at a price lower than the price it normally
charges in its home market, often to gain market share in the importing country.
Anti-Dumping Laws are regulations that allow a country to impose additional tariffs on
imported goods that are being dumped in their market. These tariffs are meant to bring the import
price closer to the “normal value” or to offset the injury caused to the domestic industry.
Governed internationally by Article VI of the General Agreement on Tariffs and Trade
(GATT), these laws enable World Trade Organization (WTO) member countries to protect their
domestic industries from unfair foreign pricing practices.
1.2. Domestic Health and Safety Regulations and Standards
These are laws, regulations, and standards enacted by a country to ensure that products meet
minimum health, safety, and environmental requirements.
Purpose: Protect consumers from unsafe, harmful, or defective products and prevent risks
associated with poor-quality goods, especially in areas like food, pharmaceuticals, electronics,
and chemical products.
International Standards: Organizations like the World Health Organization (WHO) and
International Organization for Standardization (ISO) often set guidelines that many countries
adopt, though each country may implement its own regulations that could be stricter or more
lenient.

2. Purpose of Anti-Dumping Laws

 Protect Domestic Industries: Anti-dumping laws prevent foreign companies from
undercutting local businesses with artificially low prices, thereby safeguarding domestic
jobs, companies, and economic stability.

 Promote Fair Trade: They aim to ensure that trade occurs fairly and that foreign
producers do not engage in predatory pricing strategies designed to harm competitors.

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  Maintain Product Standards: By imposing duties on dumped goods, anti-dumping laws
also help ensure that imported products meet the domestic market’s health and safety
standards.
 Prevent Economic Damage: Dumping can lead to significant losses for domestic
industries, which might have to reduce production, lay off employees, or close altogether
if they cannot compete with cheaper imports.

 Ensure Long-Term Market Stability: Without anti-dumping measures, local markets

could become overly reliant on foreign goods, potentially causing supply issues or price
hikes if foreign suppliers later increase their prices.

3. Impact on Domestic Health and Safety

 Protection of Consumers: Anti-dumping measures help shield consumers from low-
quality or harmful products that may enter the market at artificially low prices. Imported
goods sold at a dump price may sometimes lack adherence to domestic health and safety
standards due to cost-cutting in their production process.

 Maintenance of Quality Standards: By discouraging the dumping of low-cost goods,

anti-dumping laws uphold domestic quality standards. Countries can impose safety
standards for imported goods (e.g., food, pharmaceuticals, electronics), ensuring that only
products meeting certain health and safety regulations can enter their markets.

 Enhancement of Public Health: Low-quality imports in sectors like food,

pharmaceuticals, or chemicals can pose serious health risks. Anti-dumping measures
reduce the influx of these potentially hazardous products, contributing to overall public
health.

 Support for Regulatory Compliance: Domestic industries often face stringent health
and safety standards that add to production costs. Anti-dumping laws help ensure that
foreign competitors comply with similar standards, creating a fairer market environment.

 Environmental Safety: In some industries, dumped products may not comply with
domestic environmental standards, especially when they include chemicals or pollutants.
Anti-dumping laws help prevent the import of environmentally harmful goods, ensuring
that foreign products adhere to domestic environmental protections.

4. Impact on Exporting Countries

 Reduction in Export Competitiveness: Anti-dumping measures in importing countries

can make products from exporting countries more expensive due to additional duties.

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 This can reduce the price competitiveness of exports from the originating country,
leading to a decrease in demand.

 Pressure to Improve Product Standards: Exporting countries may need to improve

their product standards to comply with the health and safety regulations of importing
countries. This can be especially challenging for countries with less stringent domestic
regulations, as compliance often requires additional costs and changes in production
methods.

 Potential for Trade Disputes: Anti-dumping actions can lead to trade tensions and
disputes between countries. Exporting countries may see anti-dumping duties as
protectionist measures rather than fair trade practices, leading to cases brought before the
WTO.

 Impact on Foreign Producers and Industries: If a country frequently faces anti-

dumping duties, it can harm its export industries, potentially leading to business closures
and job losses. Industries in the exporting country might face significant barriers to
entering certain markets due to these duties, limiting their growth potential.

 Encouragement for Diversification: To counter the effect of anti-dumping duties,

exporting countries may need to diversify their products or markets. This can reduce
dependency on specific markets and promote broader economic resilience.

 Economic Repercussions: Anti-dumping duties may lead to a decline in overall export

revenues for the affected industries and, potentially, the exporting country’s economy.
This is especially true if multiple countries impose such measures on a particular product
or sector.

LEGAL FRAMEWORK OF INITIATING ANTI DUMPING INVESTIGATIONS

The general Legal framework on dumping is contained under Article VI of the GATT 1994
(The Anti-Dumping Agreement) which provides WTO Members can impose anti-dumping
measures, if, after investigation in accordance with the Agreement, a determination is made (a)
that dumping is occurring, (b) that the domestic industry producing the like product in the
importing country is suffering material injury, and (c) that there is a causal link between the two.
In addition to substantive rules governing the determination of dumping, injury, and causal link,
the Agreement sets forth detailed procedural rules for the initiation and conduct of investigations,
the imposition of measures, and the duration and review of measures.
Article 5.1 of the agreement provides that except as provided for in paragraph 6, an investigation
to determine the existence, degree and effect of any alleged dumping shall be initiated upon a
written application by or on behalf of the domestic industry. The legal requirements of an

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investigation are listed at article 5.2 which reads, an application under paragraph 1 shall include
evidence of (a) dumping, (b) injury within the meaning of Article VI of GATT 1994 as
interpreted by this Agreement and (c) a causal link between the dumped imports and the alleged
injury. Simple assertion, unsubstantiated by relevant evidence, cannot be considered sufficient to
meet the requirements of this paragraph.

PROCESS OF INITIATING ANTI-DUMPING INVESTIGATIONS

Anti-dumping investigation is initiated through an application as stated under Article 5.2. The
Article provides that application shall contain such information as is reasonably available to the
applicant on the following:
i. The identity of the applicant and a description of the volume and value of the domestic
production of the like product by the applicant. Where a written application is made on
behalf of the domestic industry, the application shall identify the industry on behalf of
which the application is made by a list of all known domestic producers of the like
product (or associations of domestic producers of the like product) and, to the extent
possible, a description of the volume and value of domestic production of the like product
accounted for by such producers;
ii. complete description of the allegedly dumped product, the names of the country or
countries of origin or export in question, the identity of each known exporter or foreign
producer and a list of known persons importing the product in question;
iii. Information on prices at which the product in question is sold when destined for
consumption in the domestic markets of the country or countries of origin or export (or,
where appropriate, information on the prices at which the product is sold from the
country or countries of origin or export to a third country or countries, or on the
constructed value of the product) and information on export prices or, where appropriate,
on the prices at which the product is first resold to an independent buyer in the territory
of the importing Member;
iv. Information on the evolution of the volume of the allegedly dumped imports, the effect of
these imports on prices of the like product in the domestic market and the consequent
impact of the imports on the domestic industry, as demonstrated by relevant factors and
indices having a bearing on the state of the domestic industry, such as those listed in
paragraphs 2 and 4 of Article 3.
The authorities shall examine the accuracy and adequacy of the evidence provided in the
application to determine whether there is sufficient evidence to justify the initiation of an
investigation.

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CONDITIONS FOR IMPOSING ANTIDUMPING DUTIES DURATION AND REVIEW
OF ANTI-DUMPING DUTIES.
Imposition and Collection of Anti-Dumping Duties
These are provided for under Article 9 of the Agreement which provides that:
9.1 The decision whether or not to impose an anti-dumping duty in cases where all requirements
for the imposition have been fulfilled, and the decision whether the amount of the anti-dumping
duty to be imposed shall be the full margin of dumping or less, are decisions to be made by the
authorities of the importing Member. It is desirable that the imposition be permissive in the
territory of all Members, and that the duty be less than the margin if such lesser duty would be
adequate to remove the injury to the domestic industry.

9.2 When an anti-dumping duty is imposed in respect of any product, such anti-dumping duty
shall be collected in the appropriate amounts in each case, on a non-discriminatory basis on
imports of such product from all sources found to be dumped and causing injury, except as to
imports from those sources from which price undertakings under the terms of this Agreement
have been accepted. The authorities shall name the supplier or suppliers of the product
concerned. If, however, several suppliers from the same country are involved, and it is
impracticable to name all these suppliers, the authorities may name the supplying country
concerned. If several suppliers from more than one country are involved, the authorities may
name either all the suppliers involved, or, if this is impracticable, all the supplying countries
involved.
9.3 The amount of the anti-dumping duty shall not exceed the margin of dumping as established
under Article 2.

9.3.1 When the amount of the anti-dumping duty is assessed on a retrospective basis, the
determination of the final liability for payment of anti-dumping duties shall take place as soon as
possible, normally within 12 months, and in no case more than 18 months, after the date on
which a request for a final assessment of the amount of the anti-dumping duty has been made.20
Any refund shall be made promptly and normally in not more than 90 days following the
determination of final liability made pursuant to this sub-paragraph. In any case, where a refund
is not made within 90 days, the authorities shall provide an explanation if so requested.

9.3.2 When the amount of the anti-dumping duty is assessed on a prospective basis, provision
shall be made for a prompt refund, upon request, of any duty paid in excess of the margin of

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dumping. A refund of any such duty paid in excess of the actual margin of dumping shall
normally take place within 12 months, and in no case more than 18 months, after the date on
which a request for a refund, duly supported by evidence, has been made by an importer of the
product subject to the anti-dumping duty. The refund authorized should normally be made
within 90 days of the above-noted decision.

9.3.3 In determining whether and to what extent a reimbursement should be made when the
export price is constructed in accordance with paragraph 3 of Article 2, authorities should take
account of any change in normal value, any change in costs incurred between importation and
resale, and any movement in the resale price which is duly reflected in subsequent selling prices,
and should calculate the export price with no deduction for the amount of anti-dumping duties
paid when conclusive evidence of the above is provided.
9.4 When the authorities have limited their examination in accordance with the second sentence
of paragraph 10 of Article 6, any anti-dumping duty applied to imports from exporters or
producers not included in the examination shall not exceed:
(i) the weighted average margin of dumping established with respect to the selected exporters or
producers or,

(ii) where the liability for payment of anti-dumping duties is calculated on the basis of a
prospective normal value, the difference between the weighted average normal value of the
selected exporters or producers and the export prices of exporters or producers not individually
examined, provided that the authorities shall disregard for the purpose of this paragraph any zero
and de minimis margins and margins established under the circumstances referred to in
paragraph 8 of Article 6. The authorities shall apply individual duties or normal values to
imports from any exporter or producer not included in the examination who has provided the
necessary information during the course of the investigation, as provided for in subparagraph
10.2 of Article 6.

9.5 If a product is subject to anti-dumping duties in an importing Member, the authorities shall
promptly carry out a review for the purpose of determining individual margins of dumping for
any exporters or producers in the exporting country in question who have not exported the
product to the importing Member during the period of investigation, provided that these
exporters or producers can show that they are not related to any of the exporters or producers in
the exporting country who are subject to the anti-dumping duties on the product. Such a review
shall be initiated and carried out on an accelerated basis, compared to normal duty assessment
and review proceedings in the importing Member.

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No anti-dumping duties shall be levied on imports from such exporters or producers while the
review is being carried out. The authorities may, however, withhold appraisement and/or request
guarantees to ensure that, should such a review result in a determination of dumping in respect of
such producers or exporters, anti-dumping duties can be levied retroactively to the date of the
initiation of the review.

DURATION AND REVIEW OF ANTI-DUMPING DUTIES AND PRICE

UNDERTAKINGS
11.1 An anti-dumping duty shall remain in force only as long as and to the extent necessary to
counteract dumping which is causing injury.
11.2 The authorities shall review the need for the continued imposition of the duty, where
warranted, on their own initiative or, provided that a reasonable period of time has elapsed since
the imposition of the definitive anti-dumping duty, upon request by any interested party which
submits positive information substantiating the need for a review.21 Interested parties shall have
the right to request the authorities to examine whether the continued imposition of the duty is
necessary to offset dumping, whether the injury would be likely to continue or recur if the duty
were removed or varied, or both. If, as a result of the review under this paragraph, the authorities
determine that the anti-dumping duty is no longer warranted, it shall be terminated immediately.

11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping duty
shall be terminated on a date not later than five years from its imposition (or from the date of the
most recent review under paragraph 2 if that review has covered both dumping and injury, or
under this paragraph), unless the authorities determine, in a review initiated before that date on
their own initiative or upon a duly substantiated request made by or on behalf of the domestic
industry within a reasonable period of time prior to that date, that the expiry of the duty would be
likely to lead to continuation or recurrence of dumping and injury.22 The duty may remain in
force pending the outcome of such a review.

11.4 The provisions of Article 6 regarding evidence and procedure shall apply to any review
carried out under this Article. Any such review shall be carried out expeditiously and shall
normally beconcluded within 12 months of the date of initiation of the review.

11.5 The provisions of this Article shall apply mutatis mutandis to price undertakings accepted
under Article 8.

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STANDARDS AND REGULATIONS

1. GATT (General Agreement on Tariffs and Trade)

In the WTO law, dumping is not prohibited. However, WTO Members are allowed to take
measures to protect their domestic industry from the injurious effects of dumping. Pursuant to
Article VI of the GATT (General Agreement on Tariffs and Trade ), popularly referred to as
Anti-Dumping Agreement1994, WTO Members are entitled to impose anti-dumping measures
if three conditions are fulfilled.

1.1.Dumping existence

Dumping is generally determined through a price-to-price comparison of the ‘normal value’

with the ‘export price’. The ‘normal value’ is the price of the like product in the domestic
market of the exporter or producer. Where this price in the exporting country market is not an
‘appropriate’ normal value, an importing Member may determine the normal value by:

1. 1.1. using the export price to an appropriate third country as the normal value; or

1.1.2. constructing the normal value. The export price is ordinarily based on the transaction price
at which the producer in the exporting country sells the product to an importer in the importing
country.

Where the transaction price is not an ‘appropriate’ export price, the importing Member may
calculate, or ‘construct’, an export price. In order to ensure a fair comparison between the export
price and normal value, the Anti-Dumping Agreement requires that adjustments be made to
either the normal value, the export price, or both.

The dumping margin is the difference between the export price and the ‘normal value’. The
calculation of the dumping margin generally requires either a comparison of the weighted
average ‘normal value’ to the weighted average of prices of all comparable export transactions;
or a transaction-to-transaction comparison of ‘normal value’ and export price. However, in
particular circumstances, a comparison of the weighted average normal value to export prices in
individual transactions may be used.

1.2. Injury

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The domestic industry producing the like product in the importing country must be suffering
injury. The Anti-Dumping Agreement defines ‘injury’ to mean one of three things:

1.2.1. Material injury to a domestic industry;

1.2.2. Threat of material injury to a domestic industry; or

1.2.3. Material retardation of the establishment of a domestic industry.

Domestic industry

The Anti-Dumping Agreement defines the ‘domestic industry’ generally as ‘the domestic
producers as a whole of the like products or those of them whose collective output of the
products constitutes a major proportion of the total domestic production of those products’.

Injury determination

The Anti-Dumping Agreement requires that a determination of injury to the domestic industry be
based on positive evidence and involve an objective examination of both:

(1) The volume of dumped imports and the effect of the dumped imports on prices in the
domestic market for like products; and

(2) The consequent impact of these imports on domestic producers of such products.

A determination of a threat of material injury shall be based on facts and not merely on
allegation, conjecture or remote possibility. A threat of material injury exists when a change in
circumstances, creating a situation in which the dumping would cause injury, is clearly foreseen
and imminent.

1.3. Causal link

The third and last condition for the imposition of an anti-dumping measure is that there is a
causal link between the dumped imports and the injury to the domestic industry. According to the
‘non-attribution’ requirement, investigating authorities must examine any known factors, other
than the dumped imports, that are injuring the domestic industry at the same time and must not
attribute the injury caused by these other factors to the dumped imports.

Procedural rules

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The Anti-Dumping Agreement contains detailed rules on the initiation of an anti dumping
investigation, the process of the investigation (including evidentiary issues) and requirements for
public notice. The main objectives of these procedural rules are to ensure that:

(1) the investigations are conducted in a transparent manner;

(2) all interested parties have the opportunity to defend their interests; and

(3) the investigating authorities adequately explain the basis for their determinations.

2. Kenya Trade Remedies Act

Kenya is among the few African countries that have recently passes a trade remedies law, The
Kenya Trade Remedies Act. This legislation covers dumping as a trade remedy and has in fact
made the country to be compliant with the WTO’s AD (Anti-Dumping) agreement. The gives
Kenya a legal framework implementing Article VI of GATT and AD Agreement.

Section 3 of the Act establishes the Kenya Trade Remedies Agency (KETRA). Section 5 (a)
of the Act gives the Authority the power to investigate and evaluate allegations of dumping and
subsidization of imported products in Kenya. The power to impose anti -dumping measures is
governed by Section 23(1) of the Act which states that:

”The Cabinet Secretary may impose- (a) in the case of goods dumped in Kenya, an antidumping
duty in an amount equal to or less than the margin of dumping of the imported goods”

The Act in Sections 24- 37 indicate the procedure for commencing investigation of alleged
dumping.

The Second Schedule , Part II covers determination of dumping, injury [caused by dumping]
and causal link (the relationship between dumping and the injury. Also included in this
Schedule is the determination of the normal value ( Section 3) and the export price
(Section.4). It is also worth noting that threat of injury (Section 7) can be as basis of anti-
dumping measures.

Part III of the Second Schedule of the Act deals with initiation, conduct and conclusion of a
dumping investigation. While Part IV is on duration of the anti-dumping duties and
voluntary price undertakings. (Section 23).

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TRADE CONFLICTS AND PUBLIC HEALTH

1. World Trade Organisation [WTO]

The World Trade Organisation [WTO] deals with rules governing trade among its members. It
has binding trade agreements1 that members’ states have agreed to comply with in their
relationship with one another. A trade agreement, for example, by the name of General
Agreement on Trade in Services2 [GATS] deals purely with trade in services sector. This is just
one amongst many other WTO’s trade agreements such as those that deal with Agriculture,
intellectual property rights, etc.

GATS has a potential of far reaching consequences on the citizens of the world since it
incorporates and brings to the fore areas that were never thought before as tradable (i.e. health,
water, educational services) and hence to be under the dictates of the WTO rules and system.
Some of these basic services are within the realms of government control, management, and
support. Governments globally and more so those of developing countries, literally provide the
services, e.g. healthcare services in Kenya have been for a long time a major responsibility of the
government.

The agreement covers nearly all-imaginable services. Services were deemed then, and even
today, to play a pivotal role in global trade. That’s why they were incorporated in the global
trading system. According to the WTO, services sector covers well over 60% of world G.D.P.,
hence regarded as the main creator of job opportunities in both developing and developed
countries. It was important therefore to bring rules to govern services all over the world. That’s
how essentially GATS came to existence. But that’s not the complete story; other strong pushers
for services agreement within WTO included multinational firms such as American express, Citi
corp3 etc.

2. Modes for services (WTO)

1
At the end of the Uruguay Round of multilateral trade negotiations in 1994, the WTO came up with a
package of over 40 agreements and interpretive Understanding and decisions. See this at the web
<http://www.wto.org/english/docs_e/legal_e.htm>
2
Visit: http://www.wto.org/english/tratop_e/serv_e/gatsintr_e.htm
3
Speech by David Hartridge, the Director of Trade in Services Division, entitled “ What the General
Agreement on trade in Services Can do”. This was during a conference in London on 8th January 1997 on the
theme ‘Opening markets for banking worldwide: the WTO General Agreement on Trade in Services’

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The agreement categorizes four trading modes for services i.e.,

2.1. Services conducted through cross border supply4 [normally referred to as mode one].

A good example is the use of advice services over the telephone from one country to another. For
example, a patient would be residing in the country and receiving instructions from medical
practitioners in a faraway country like Canada (this is normally referred to as telemedicine.)

2.2. Services offered through consumption abroad5 [mode two]

For example, a Kenyan patient leaving the country for treatment in another country, say like the
United Kingdom.

2.3. Services offered through commercial presence6 [mode three].

What this means is that firms can legally establish branches, subsidiaries or joint ventures and
offer trade services in other countries that are Member States of the WTO. A company
establishing a hospital or an insurance firm in another country to offer services there is a good
example.

2.4. Services offered through the “presence of natural persons” in another country 7[mode
four].

This is when medical practitioners, i.e. gynaecologists or dentists or even nurses leave the
country to go to, say, Botswana or elsewhere to offer their professional services there.

General Agreement on Trade in Services 8, GATS, is one of the most far-reaching achievements
of the Uruguay Round9 For the first time the global community was having the first and only

4
GATS Article I.2a.
5
GATS Article I.2b
6
Ibid. Article I.2c
7
GATS Article I.2d
8
It is a WTO legal document divided in six parts with a total of 29 articles. It is supplemented by annexes and
schedules which all have a legal bearing
9
Multilateral trade negotiations launched at Punta del Este, Uruguay in September 1986 and
concluded in
Geneva in December 1993. Signed by Ministers in Marrakesh, Morocco, in April, 1994

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multilateral legal (enforceable) frame work that provided for a set of rules governing
international trade in services.

As commitments are made to liberalise services 10across the board, Members of the WTO are
obliged to adhere to the basic guiding principles that govern the agreement.

3. Basic obligations

These include:

3.1. General obligations

Which in principle applies to all members directly and automatically whether they have
committed themselves to liberalise any services sector or not. This principle incorporates the
horizontal rules mentioned below, that is [a) and b)], which covers all government measures that
affect trade in services.

3.2. Liberalise specific service

Member commits itself to liberalise specific service sectors of its choice, to which the principles
of market access and national treatment immediately takes effect.

Lets explain the principles thus,

4. General Obligations
4.1. The Most Favoured Nation principle25. (MFN)

Favour one favour all. Members are obliged to extend “treatment no less favourable than that
accorded to like services and services suppliers of any other country” 11. For example, if a foreign
health services provide operates in Kenya under any of the modes of services supply, Kenyan
authority is supposed to treat on equal terms and conditions this foreign service provider as any
other country’ service provider that has entered Kenya.

4.2. Transparency12

10
GATS article xix. 1
11
General Agreement on Trade in Services [GATS], article ii.1
12
GATS article iii

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Members are required to publish all new laws relating to the services sector and to establish
national enquiry points that will give all information, i.e. about laws, regulations 13, etc.,
requested by any other WTO member regarding measures which affect the general application of
the GATS agreement. This was to be done within two years from the time GATS came into force
i.e. by the end of 1997.

5. Specific commitments

5.1. The National Treatment principle14

Once Kenya has made a certain specific commitment to liberalise on the various service sectors
it has to treat equally the foreign service provider as its very own service providers.

5.2. Market access15

Simply put, this is the legal right of service provider to supply his/her service through any of the
four modes of supply as agreed in the schedule of the country’s commitments (which might
contain limitations), and not to be hindered by specific government measures, such as limitations
on the number of service suppliers.

Having clarified the above point (market access) thus, the government has to check whether or
not to put up “measures”16that will regulate the committed services sectors in the country’s
schedule. The agreement recognises “the right of members to regulate” 17 as long such
“measures” are done in “a reasonable, objective and impartial manner”18.

The initial requests will be on bilateral basis since countries will be targeting those services
sectors in specific countries and which if granted to them will translate into maximum advantage
to their own service providers.

13
Any change of regulation that applies to any of the services that come under specific commitments must be
notified to the WTO
14
GATS Part 3 –Specific commitments -Article XVII
15
GATS Part 3 - Article XVI
16
Measures means “any measure by a member, whether in the form of a law, regulation, rule, procedure, decision,
administrative action, or any other form” see GATS Article XXVIII.a 32 See the GATS preamble, the fourth verse.
Visit http://www.wto.org/english/tratop_e/serv_e/gatsintr_e.htm
17
See the GATS preamble, the fourth verse. Visit http://www.wto.org/english/tratop_e/serv_e/gatsintr_e.htm
18
GATS article vi: clause 1

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6. Foreign presence in health in Kenya

Kenya is host to various foreign health service providers and other healthcare related services
such as health insurance as can be seen in table 3b. Some institutions have had “commercial
presence” here for too long and it is difficult to distinguish whether ownership is local or foreign.
Others have been able to integrate themselves with local staff and environment that one would
easily think that they are local [Gertrude and Nairobi hospital are a good example].

7. Conclusion and recommendations

Governments of the world, through the help of WTO and other global institutions, are
systematically handing over their role as providers of basic services such as providing water
services, electricity, health services, etc to private hands. The handing over process to private
merchants, local and foreign, is well facilitated, through design or otherwise, by the GATS
agreement that more or less guarantees the investors’ interests are uppermost compared to, say,
human rights of citizens.

This is understandably so, we have been told, because the trade organisation is not a human
rights organisation. We have been sweet talked to believe that ultimately all shall be well, and
that themarket forces of supply and demand brings out the best to every country that opens up its
market to investors. On the other hand, and indeed in sharp contrast, we are seeing increasing
discontent brewing amongst the citizens of the world, as was evidently exhibited by
demonstrations in places like Seattle, U.S.A. during the 3rd WTO Ministerial Conference and
Genoa, Italy just recently, against unchecked globalisation.

Many feel that basic human needs such as water, energy, healthcare, etc. are not items to be
brought under a multilateral set up of trade. These are basic human needs, and therefore need to
be left to governments (particularly those from developing countries) and their citizens to decide
on what they want to do with these services. It is a strange idea, indeed convoluted one, to have
governments totally abdicate their role of controlling, regulating and when necessary providing
for instance, health care services. It would not be prudent to hand over these noble roles to
merchants who are in the business to make profits. One has to understand the mindset of the
investor; he has the primary interest of making profits and not just to provide healthcare needs of
the poor rural folks out there on a humanitarian ground. Further to this, what would be the

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scenario if the entire health sector of a country is in the hands of rich service providers from the
territory of a perceived enemy and a war breaks out between the two nations? There are many
good reasons as to why many nations of the world have for a long time firmly guarded against
the liberalisation of these sectors. These reasons are still legitimate.

For instance, trading in education, water or healthcare services in California in the U.S.A. may
enhance quality of service and promote creativity and consumer choice in that specific sector as
the service providers compete for clients in the lucrative market. Without any strong government
control or interference, the well being of Californians will be enhanced overall to say the least.
But this might be detrimental to, say, Kenyans who are poor105 and even opening the market for
the same kind of investors from California, though they may come with the state of the art
technology, may be dismayed because the market is not conducive for them, to make desirable
profits. With this in mind, it will be wrong to push such a poor nation to open its service sectors
to the market forces of demand and supply, laeissez faire style, when its government’s prime
agenda is to cater for the marginalized segments of the population. Yet, private commercial
service providers cannot do this kind of service, whether local or foreign. This is what this paper
has tried to espouse all along.

8. Dangers inherent in health care liberalisation

Problems will always abound when decisions are hastily arrived at without proper and adequate
stock taking and wide consultation amongst stakeholders. Some of the major problems that
Kenya shares with other developing countries, particularly from Africa, include the following.

8.1. Brain–drain

In Kenya we need not belabour this point, since its public knowledge that many health
professionals think that this is not the right place for them to work and get the desired returns that
they seek. Private foreign hospitals have neither helped solve the problem as earlier envisaged,
though they remunerate their staff slightly better than public health institutions. Many are
accused of not remunerating local staff on equal terms with foreign staff, yet working in the same
environment and having equivalent qualifications. Consequently, our health professionals have
gone to other countries to look for better job prospects, like the 300-plus Kenyan health
professionals in Botswana currently. There is a definite need to look into the welfare of the

16
medical professionals and remunerate them appropriately. This will retain them here to offer the
needed service to the community. Others argue that it is more appropriate to have “brain drain
than brain in the drain”, but it is clear that if such mass exodus of the best brains in the society
seek plum jobs abroad, ultimately, the nation itself may go “in the drain”.

8.2. Outflow of financial resources

Despite of the difficulty to finance healthcare and the general poor economic performance in
Kenya in recent times, quite a sizeable number of patients could afford to leave the country for
treatment in foreign countries. Even though this has been done through private means or through
public fundraising, it is believed to have caused great outflow of financial resources.

8.3. A two-tiered system

With higher quality being accorded to foreign patients -alongside rich domestic patients- is one
distinct offspring of inappropriate liberalisation in healthcare. Even with scarce statistics
available, it is not far from the truth to state the fact that the “commercial presence” of foreign
health providers in Kenya attracts substantial number of patients from the region especially from
countries that are not politically stable hence, pushing poor Kenyans who can not afford to pay
for these services to the periphery.

When the business is good and foreigners jam specific hospitals, then the local patients get a raw
deal. Incidents abound where patients have been transferred to public hospitals before
completing treatment where ability to settle bills is in doubt. The fate of such poor patients is
sealed when wealthier patients probably from warring neighbouring countries are ready to
occupy such hospital beds instead. It is prudent from a business point of view for the hospitals to
allocate space to those who are able to pay no matter their nationality.

8.4. Importing highly infectious diseases

The likely hood of importing highly infectious diseases like the Ebola fever, etc, is heightened. A
good example is what happened sometimes back in Kenya in the year 2000 in Nyeri District in
Central Kenya. One scary Ebola-like fever case was reported in the press, yet it is suspected the
origin of such fever was from the central Africa region.

17
This is indicative incidence that careless liberalisation trade in healthcare services can bring
about an escalation of and spread wide of strange diseases that can prove to be catastrophic to
human beings. The problems elaborated above may be compounded when healthcare sector is
brought under multilateral trade setting. If governments were to address these issues, by taking
certain trade “measures”, they would be deemed to “constitute unnecessary barriers to trade
in services”19106 in that sector if they affect20 the service.

9. GATS in conflict with human rights

Though it might be a complex affair to pinpoint the specific verses in GATS text that are in
conflict with economic, social and cultural human rights, it is appropriate to highlight some parts
of this text that may lead to, or encourage contravention of human rights. Slight mistakes that a
country like Kenya makes while scheduling its specific commitments to liberalise services can
be very costly if they affect the enjoyment of human rights or when the citizens demand that they
be rectified.

Article XXI of GATS is punitive to say the least. Once a country has committed a specific
service in its schedule, it is designed to stay that way permanently.

Measures to amend any kind of past mistakes through compensation to the affected parties “shall
be made on a most favoured nation basis”21, meaning, compensate one compensate all. The
very thought to “modify or withdraw” a commitment is strangled in its nascent form through
such GATS clauses. The latter also stipulate that the process to make modifications can only start
three years after the commitment entered into force. Low-income countries like Kenya cannot
dare take measures to amend commitments, even when the populace demands so or need it to
have their economic, social and cultural human rights be respected. A government service, as
mentioned in this study, that is supplied “on a commercial basis”, or “in competition with one
or more service suppliers” as mentioned in GATS article I.3c, is bound to interfere with the
full realization of human rights. The argument is as follows. When the government endeavours to
create “conditions which would assure to all medical services and medical attention in the
event of sickness”22, such as directly providing healthcare service for a small fee, or establishing

19
GATS article VI. 4
20
GATS scope ‘applies to measures by members affecting trade in services’, see article I. 1 of GATS
21
GATS article XXI. 2.b
22
Article 12.2 (d) of ICESCR

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a health insurance scheme that is affordable to all, the act may be interpreted to mean that the
government is competing with other health care providers or insurance companies. This is brings
the government services under the general provisions of the agreement according to Article I.3c
of GATS.

10. Conclusion on recommendation

The very notion that healthcare services be traded, and therefore be under the general dictates of
the principles of economics goes against the cultural beliefs and traditions of the citizens of this
country. A sick person in the society needs help and should not be seen merely as another
statistics to warrant investment in healthcare services, and for that matter liberalisation of the
sector.

Actually to many, this is building a critical mass of cultural shock that needs careful massaging
as we increasingly see mistreatment or outright rejection of the less fortunate members of the
society being denied a basic human right, the right to health, on the simple premise that they can
not afford it. Ability to pay for healthcare services should not be the criteria for accessing the
same.

The architects of GATS made very grave assumption, though this may not appear anywhere in
the agreement, that governments progressively disengage themselves from providing, governing
or interfering114 in service provision even of basic needs search as water, health, education, etc.
every country that has committed such service in its schedule of commitment.

While having a good healthcare policy and plan for its citizens it is evident that Kenya like many
other countries in the region have the problem of effectively ensuring that every person enjoys.

ECONOMIC AND PUBLIC HEALTH BALANCE AND CHALLENGES IN

ENFORCEMENT AND COMPLIANCE OF ANTI-DUMPING LAWS

Achieving a balance between economic protection and public health is crucial in the context
of anti-dumping laws. Policymakers must consider the broader implications of these laws on
both local industries and the health and welfare of the population. For example, anti-dumping
measures can shield local manufacturers from predatory pricing practices, allowing them to
maintain profitability and employment levels. This protection can foster local production,
innovation, and competitiveness in the long term. While protecting local industries, anti-
19
 dumping measures may lead to higher prices for consumers due to reduced competition. The
absence of lower-priced imports can affect consumer choices and increase the cost of living.

Enforcement and Compliance is confronted by the following:

 Limited Institutional Capacity: The relevant government agencies, such as the Kenya
Revenue Authority (KRA) and the Competition Authority of Kenya (CAK), often lack
sufficient resources, training, and technical expertise to effectively implement and
enforce anti-dumping laws.
 Complexity of Investigations: Anti-dumping investigations can be complex and require
extensive data collection and analysis. Many businesses may not have the capacity to
provide the necessary documentation, which can hinder investigations.
 Political Influence: The enforcement of anti-dumping measures can be influenced by
political considerations, where decisions may be swayed by lobbying from powerful
interest groups, affecting the objectivity of investigations.
 Legal and Procedural Challenges: The legal framework surrounding anti-dumping laws
may be outdated or insufficiently defined, leading to challenges in enforcement. There
may also be procedural inefficiencies that delay the resolution of cases.
 Limited Public Support: There may be a lack of public support for anti-dumping
measures, particularly if consumers perceive that such actions lead to higher prices for
goods.

5. i) International Standards and Harmonization Efforts

International Standards and Harmonization Efforts

Introduction

International standards and harmonization play a critical role in global trade, ensuring that
products, services, and processes meet specific criteria for quality, safety, and efficiency. By
establishing agreed-upon norms and regulations, countries can facilitate smoother trading
relationships, enhance consumer confidence, and promote innovation.

Importance of International Standards

International standards serve numerous functions that are crucial in today's interconnected world:

1. Facilitating Trade: Standards create a uniform framework that reduces barriers to trade.
Companies can export their products more easily, knowing that they meet the
specifications required in different markets.

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 2. Ensuring Consumer Safety: Standards are established to protect consumers, ensuring
that products are safe to use, reliable, and of good quality. This is especially vital in
industries such as food, pharmaceuticals, and electronics.

3. Promoting Fair Competition: By leveling the playing field, standards help ensure that
all players in a market adhere to the same rules, discouraging unfair practices that can
arise from varying national regulations.

4. Encouraging Innovation: Standards often drive innovation as companies strive to meet

or exceed these criteria, leading to improvements in product design, processes, and
technologies.

5. Strengthening Market Access: Standardization can enhance a country’s market access

by demonstrating compliance with international benchmarks, which can be particularly
advantageous for developing countries seeking to integrate into the global economy.

Harmonization Efforts

Harmonization refers to the process of aligning national standards with international standards to
facilitate trade and ensure consistency across borders. Several organizations and agreements play
a crucial role in this process:

1. The International Organization for Standardization (ISO): ISO is the leading global
organization that develops and publishes international standards. With over 23,000
standards covering a wide array of topics, ISO promotes standardization efforts that
enhance global trade and improve quality of life.

2. The World Trade Organization (WTO): The WTO facilitates international trade
agreements that promote the harmonization of standards among member countries. It
encourages nations to adopt international standards as the basis for their regulations,
fostering an environment of cooperation and trust.

3. International Electrotechnical Commission (IEC): The IEC focuses on standardizing

electrical and electronic technologies, promoting safety and interoperability. Harmonizing
electrical standards can significantly enhance trade in electronics and electrical goods.

4. Codex Alimentarius: Established by the Food and Agriculture Organization (FAO) and
the World Health Organization (WHO), Codex promotes food safety and quality
standards that member countries can adopt, thus ensuring consumer protection while
facilitating international food trade.

5. Regional Harmonization Initiatives: Various regions have established their

harmonization bodies, such as the African Organization for Standardization (ARSO) and
the Asia-Pacific Economic Cooperation (APEC), aiming to align standards within their
jurisdictions to further enhance trade relationships among member nations.

Challenges in Harmonization

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While the efforts towards developing international standards and harmonization are
commendable, several challenges persist:

1. Diverse National Interests: Countries often have different priorities, economic

conditions, and cultural contexts that can make it challenging to agree on harmonized
standards.

2. Technical Barriers to Trade (TBT): Even with harmonization efforts in place, technical
barriers can still arise due to differing interpretations or implementation issues of the
standards.

3. Capacity and Resources: Developing countries might lack the technical capacity and
resources to implement international standards effectively. This disparity can lead to
unequal participation in global trade.

4. Political and Economic Issues: Political tensions, trade disputes, and economic
sanctions can hinder cooperation and the adoption of common standards among
countries.

5. Evolving Technologies: Rapid technological advancements can outpace standardization

efforts, leading to gaps where new innovations are not adequately covered by existing
standards.

Benefits of Harmonization Efforts

Despite the challenges, the benefits of harmonization are significant:

1. Increased Market Access: Nations that adopt international standards can gain smoother
access to foreign markets, enhancing their export opportunities.

2. Improved Product Quality and Safety: By adhering to international standards,

companies can improve the quality and safety of their products, which is essential for
consumer confidence.

3. Enhanced Competitiveness: Businesses can improve their competitive edge by adopting

recognized standards, making them more appealing in the global marketplace.

4. Innovation and Efficiency: Standardization can spur innovation as companies look for
ways to meet and exceed established norms, leading to improved processes and
technologies.

5. Global Cooperation: Harmonization fosters a spirit of collaboration among nations,

strengthening diplomatic ties and promoting a culture of shared responsibility in
addressing global challenges.

ii) Consumer Awareness and Market Perceptions

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Consumer Awareness and Market Perceptions
Consumer awareness and market perceptions regarding anti-dumping laws play a pivotal role in
international trade and economic policy. Anti-dumping laws are designed to protect domestic
industries from unfair competition by preventing foreign companies from selling products at
prices lower than their fair market value, which can harm local businesses and lead to job losses.
In Kenya, as in many developing countries, the implementation of these laws is critical for
fostering fair competition and protecting local markets from predatory pricing by foreign entities
selling goods at prices lower than their normal value. While these laws serve to maintain fair
competition and safeguard local economies, consumer awareness and market perceptions
surrounding anti-dumping measures significantly influence their effectiveness and public
support.
The Role of Consumer Awareness
1. Knowledge and Understanding of Anti-Dumping Laws Consumer awareness of anti-
dumping laws plays a critical role in shaping public perception and acceptance of these
measures. Informed consumers who understand the rationale and implications of anti-dumping
regulations may be more supportive, as they recognize the protection these laws provide to local
industries. When consumers are aware that certain products are subject to anti-dumping duties,
they may develop preferences for domestic alternatives, believing that these products offer better
quality and contribute to the local economy.
2. Impact on Purchasing Behavior Higher levels of consumer awareness can significantly
influence purchasing behavior. In markets where consumers actively seek information about
product origins, the presence of anti-dumping laws can deter them from buying imports
perceived as “dumped.” Consequently, businesses may need to adjust their marketing strategies
to emphasize compliance with anti-dumping regulations or highlight the benefits of locally
produced items. Businesses that promote their adherence to fair pricing practices could foster
greater consumer trust and loyalty.
3. Education and Information Dissemination Efforts to enhance consumer understanding of
anti-dumping laws can improve market perceptions. Educational campaigns that explain how
these regulations protect local jobs, promote fair competition, and enhance consumer welfare can
create a more favorable environment for anti-dumping measures. When consumers grasp the
stakes involved, they are more likely to align their purchasing decisions with their values, such
as preference for quality or support for local producers.
Market Perceptions of Anti-Dumping Laws
1. Quality Assurance
Anti-dumping regulations can influence consumer perceptions of product quality. Consumers
may associate domestic products with higher quality due to the belief that local manufacturers

23
adhere to stricter standards. If imported products are viewed as potentially harmful due to unfair
pricing, consumers may prefer domestic alternatives, bolstering local industries and framing
domestic products as more trustworthy.
2. Price Sensitivity and Market Dynamics While anti-dumping laws aim to protect local
industries, they may also lead to higher prices for consumers, resulting from the imposition of
tariffs on imported goods. This can create discord among consumers who may prioritize low
prices over protecting domestic industries. Price-sensitive consumers may express frustration
regarding rising costs, leading to calls for reconsideration or reform of anti-dumping measures.
Policymakers must balance the interests of domestic producers against the potential negative
impact on consumer prices.
3. Economic Nationalism In recent years, there has been a surge in economic nationalism,
where consumers prefer to buy local products in support of their economy. Anti-dumping
measures resonate with this sentiment, as they are perceived as a means of preserving jobs and
promoting local manufacturers. Markets with high levels of economic nationalism may actively
support anti-dumping laws, creating a favorable environment for their enforcement. There is an
awareness that anti-dumping laws contribute to the broader economic health of the country. By
leveling the playing field for local companies, these laws can enhance economic growth and
reduce reliance on imports, which can be crucial for a developing economy like Kenya's.
4. Trade Policy and Global Relations Market perceptions of anti-dumping laws are also
influenced by broader trade policies and international relations. For instance, consumers may
react negatively to anti-dumping measures if they perceive them as protectionist or detrimental to
international cooperation. Heightened tensions between trading partners may exacerbate
skepticism toward these laws, prompting concerns regarding retaliatory measures or the potential
for trade wars.
5. Protection of Local Industries: Consumers appreciate the need to protect local businesses,
especially in sectors like agriculture and manufacturing. There is a growing recognition of the
role that local industries play in economic development, job creation, and sustainable trade
practices.
Implications for Policymakers and Businesses
Some consumers may worry that anti-dumping measures can lead to prices rising for local
goods. Although they recognize the need to protect local industries, there is often apprehension
that such protections can lead to less competitive pricing compared to cheaper imports. This can
lead to ambivalence toward the regulations.
1. Clear Communication and Transparency For anti-dumping laws to be effective and garner
public support, policymakers must engage in transparent communication about the purpose,
process, and benefits of these regulations. Providing clear information regarding how anti-
dumping measures protect domestic industries and consumers can increase public support. This

24
transparency can also involve consultations with stakeholders, including consumer advocacy
groups and businesses, to ensure that the law balances competing interests.

2. Balancing Protection and Affordability Policymakers must strike a balance between

protecting domestic industries and ensuring affordability for consumers. Implementing anti-
dumping measures should not inadvertently lead to excessive price increases, which can harm
consumers and undermine the intended purpose of protection. Regular reviews of anti-dumping
duties and their impacts on market conditions can help policymakers adjust regulations to reflect
changing economic realities.
3. Strategic Business Adaptation Businesses impacted by anti-dumping laws need to adapt
their strategies accordingly. Firms can differentiate themselves from perceived "dumped" imports
by focusing on quality, ethical production, and local engagement. Clearly communicating how
their products contribute positively to the community can enhance consumer loyalty and mitigate
negative perceptions.
Challenges and Recommendations
Consumer awareness of anti-dumping laws in Kenya is generally low. The complexities of
international trade regulations make it difficult for the average consumer to grasp how these laws
function or their significance. This lack of understanding can be attributed to several factors:
1. Education and Outreach: The government and relevant agencies have not thoroughly
educated the public about anti-dumping laws. Many consumers may not recognize the term or
understand its implications in day-to-day commerce.
2. Economic Focus: Consumers often prioritize immediate factors such as price, quality, and
availability, rather than understanding the regulations governing these aspects. Anti-dumping
laws, while they may stabilize prices in the long run, can also result in increased costs for
imported goods, which can confuse consumers who may only see higher prices without realizing
the protective measures in place.
3. Media Representation: The media plays a crucial role in informing consumers about
market dynamics and regulations. However, most coverage of anti-dumping laws tends to be
technical or aimed at stakeholders rather than the general public, leading to a disconnect in
awareness.
The effective implementation of anti-dumping laws in Kenya and other countries faces several
challenges:
1. Administrative Hurdles: The process of investigating dumping claims and imposing
tariffs can be lengthy and complicated. This may deter local producers from seeking protection
under the law.

25
2. Limited Resources: The authorities tasked with enforcing anti-dumping laws may lack
the necessary resources and training, leading to inefficiencies in the regulatory process.
3. Consumer Confusion: A lack of awareness can lead to confusion among consumers, who
may not understand why prices fluctuate or how anti-dumping measures might affect their
purchasing decisions.
To address these challenges, several recommendations can be made:
1. Enhanced Public Education: The government should initiate awareness campaigns aimed
at informing consumers about anti-dumping laws and their benefits. This could involve
collaboration with NGOs, trade associations, and educational institutions.
2. Streamlining Regulatory Processes: Simplifying the procedures for filing complaints and
conducting investigations would encourage more local industries to seek protection when
needed.
3. Engaging with Media: Proactively engaging with the media to provide accurate and
accessible information about anti-dumping laws can help bridge the gap in consumer
understanding and create a more informed public.
4. Monitor Market Trends: Continuous monitoring of market responses to anti-dumping
measures can help regulatory bodies adjust policies in a way that balances consumer pricing with
the need to protect local industries
Consumer awareness and market perceptions play a significant role in shaping the landscape of
anti-dumping laws. While these regulations aim to protect domestic industries from unfair
foreign competition, their effectiveness hinges on public understanding and support. Ensuring
that consumers are informed about the rationale behind anti-dumping measures can foster
positive market perceptions and align consumer behavior with broader economic goals. By
balancing the needs of domestic producers with those of consumers, policymakers can create a
fair and equitable trading environment that benefits all stakeholders involved. The interplay
between consumer awareness and market perceptions regarding anti-dumping laws will continue
to evolve, necessitating ongoing dialogue and adaptation in a rapidly changing global trade
landscape.
Anti-dumping laws in Kenya are a crucial aspect of the nation's trade policy, designed to protect
local industries from unfair competition. While consumer awareness of these laws remains
limited, there is a generally positive perception of their necessity among the public. Enhancing
consumer knowledge and addressing challenges in the regulatory framework can further
strengthen these laws' effectiveness, ensuring that they benefit both local industries and
consumers. Ultimately, the success of anti-dumping measures will depend on creating a balanced
approach that promotes fair competition while safeguarding consumer interests and fostering
economic growth.

26
INTERSECTION OF ANTIDUMPING LAWS AND HEALTH REGULATIONS AND
SAFETY STANDARDS.
The Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade
1994 (GATT), popularly referred to as Anti-Dumping Agreement does not prohibit dumping but
it focus on the actions that governments can take and what they cannot take while reacting to
dumping in their markets. It is for this reason that perhaps there is no such thing as a Dumping
Agreement but rather an Anti-Dumping Agreement or AD Agreement.
What is Dumping?
Both Article VI of the GATT 1994, and in the AD Agreement, as the sale of an imported product
in the importing market at less than its "normal value ". Normal value will be explained shortly.
But in essence dumping would occur where the price of the imported good is less than the price
at which the exporter sells that good in its own home market. In summary dumping occurs
where there is international price discrimination.
Dumping is not Price Undercutting
It is important to underline that the sale of an imported product for less than the price charged
for the same product produced domestically is not dumping but price undercutting. In Kenya for
example this is dealt with under the Competition Act whose section 21 covers price under
cutting among other restrictive trade practices . Also, importing of substandard products is not
dumping but a problem which can be addressed through domestic Anti counterfeit such as
Kenya’s Anti Counterfeit Act
Legal Basis for Anti-Dumping & Anti-Dumping Legislation.
Article VI of GATT allows countries to act against dumping.The AD Agreement clarifies and
expands on Article VI, and the two operate together. The AD Agreement is rather long and
complex. In short, it represents an effort to balance potentially conflicting interests: on the one
hand, the interest of importing countries in imposing anti-dumping measures to prevent or
remedy injury to their domestic industries caused by dumped imports; and on the other hand, the
interest of exporters (and importers and consumers) for whom anti-dumping measures and
procedures should not themselves become obstacles to fair trade.
Under GATT, countries are allowed to act in a way that would normally break the GATT
principles of binding a tariff and not discriminating among trading partners. Ordinarily, anti-
dumping action means charging an extra import duty on a particular product imported from a
particular exporter in order to bring the price of the imported product up to its normal value by
offsetting the margin of dumping. Anti-dumping measures also may take the form of price
undertakings i.e. the offending importer agrees to remedy the situation by raising the export
price of the product to avoid the possibility of an anti-dumping duty.

27
Article VI of GATT and the AD Agreement a member can impose specific anti-dumping
measures on imports from a particular source. This is usually done in addition to ordinary
customs tariffs. This, of course, is only possible when the importing Member demonstrates
through a properly conducted investigation that dumping is causing or is threatening to cause
material injury to a domestic industry or would materially retard the establishment of a domestic
industry.
When is a product dumped?
A product is to be considered as being dumped when it is introduced into the commerce of
another country at less than its "normal value", normally the comparable price at which the
product is sold in the domestic market of the exporting country, or if there is no such price, a
comparable price for sale of the like product to a third country market, or the cost of production
of the product plus a reasonable amount for selling costs and profit.
Accordingly, under GATT and AD Agreement, WTO Members can impose anti-dumping
measures if they determine that;(a)dumping is occurring;(b) that the domestic industry producing
the like product in the importing country is suffering material injury or threat thereof, or that the
establishment of a domestic industry is being materially retarded; and (c) that there is a causal
link between the two. Each of the above must, as of necessity, be fulfilled before the anti-
dumping measure can be imposed.
In addition to substantive rules governing the determinations of dumping, injury, and causal link,
the AD Agreement sets forth detailed procedural rules for the initiation and conduct of
investigations, the imposition of measures, and the duration and review of measures.
Dumping under Kenya Trade Remedies Act.
Kenya is among the few African countries that have recently passes a trade remedies law, The
Kenya Trade Remedies Act. This legislation covers dumping as a trade remedy and has in fact
made the country to be compliant with the WTO’s AD agreement. The gives Kenya a legal
framework implementing Article VI of GATT and AD Agreement. Section 3 of the Act
establishes the Kenya Trade Remedies Agency (KETRA). Under section 5 (a) of gives the
Authority to investigate and evaluate allegations of dumping and subsidization of imported
products in Kenya. The power to impose anti -dumping measures is governed by section 23(1)
of the Act which states that ;
” The Cabinet Secretary may impose- (a) in the case of goods dumped in Kenya, an antidumping
duty in an amount equal to or less than the margin of dumping of the imported goods”
In terms of investigations, the Act in sections 24- 37 indicate the procedure for commencing
investigation of alleged dumping.
The Second Schedule , Part II covers determination of dumping, injury[ caused by dumping]
and causal link(the relationship between dumping and the injury. Also included in this Schedule

28
is the determination of the normal value( s. 3) and the export price(s.4). It is also worth noting
that threat of injury (s.7) can be as basis of anti-dumping measures.
The Act elaborates in Part III of the Second Schedule deals with initiation, conduct and
conclusion of a dumping investigation. While Part IV is on duration of the anti-dumping duties
and voluntary price undertakings. (s.23).

29