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I. INTRODUCTION
As a countermeasure against unfair trade practices, the United States has frequently made use of antidumping duties. Under the current U.S. antidumping law, two tests need to be met in order to impose antidumping duties.(1) First, there must be "dumping," defined by the U.S. statute as sales of foreign goods at less than fair value (LTFV).(2) Second, there must be "injury" to the U.S. domestic industry from such dumped imports.(3) Of the two, the injury test is more important to respondents in antidumping investigations with regard to whether the antidumping duties will be levied.(4) The U.S. experience with antidumping duties reveals that far more petitions for protection have been rejected for failing to meet the injury test than for failing to meet the dumping requirement.(5)
Under the current U.S. antidumping law, there are three possible standards for legally actionable injuries to the domestic industry: (1) material injury to an established domestic industry, (2) threat of material injury to an established domestic industry, and (3) material retardation of the establishment of the domestic industry.(6) The main focus of this Article is the third category--the material retardation standard.
The current U.S. antidumping law sets out guidelines for the United States International Trade Commission (ITC)(7) to follow when making its injury determinations. U.S. law provides three factors for the ITC to consider: (1) the volume of imports, (2) the effect of imports on prices, and (3) the impact of imports on domestic producers.(8) Although these provisions may also apply to material retardation determinations, they primarily target the present material injury standard.(9) The U.S. statute also specifies comprehensive statutory criteria for investigations and determinations of the threat of material injury.(10) In contrast, no U.S. antidumping statute indicates how the ITC should apply the material retardation standard. Nor does an examination of the legislative history provide any precise guidance as to how Congress intended the standard to be applied. Therefore, criteria to determine whether the material retardation standard has been met in an antidumping investigation have had to be developed by administrative and judicial interpretations.
However, there are relatively few cases in which the ITC has dealt with the issue of the material retardation.(11) The main reason for such a paucity of precedents is simply that nearly all...