Create an effective anti-dumping team

In many ways, this stage of the defence effort is one of the most crucial. If the right team is assembled, the rest of the defence effort will proceed much more smoothly. If the wrong team is assembled, or if key people are missing, the rest of the defence will be difficult, and may even fail. The team should consist of at least the following members:

 

At least one member of senior management;

Salespeople of the product under investigation;

Financial accountants;

Cost accountants;

A specialist in United States anti-dumping law.

 

Depending on the circumstances, the team might also involve members of the company's in-house legal department and the company's regular outside lawyers (either foreign or United States). The role of each of these team members is discussed below.

 

Senior manager

 

Defending an anti-dumping investigation is a very complex undertaking. The investigation eventually involves many different parts of the company. Many people have to spend a great deal of time working on numerous projects that seem irrelevant and not part of their jobs. Many of the key people are already quite busy, and therefore are reluctant to cooperate. Various subsidiaries of the company may also be reluctant to cooperate.

 

The key to resolving all of these issues is to have a respected member of senior management take charge. The involvement of a senior manager is an indication that the company views the anti-dumping problem seriously, and considers solving it a priority. Moreover, someone needs to resolve the disputes and disagreements among the various parts of the company, and ensure that the defence effort continues as smoothly as possible.

 

In most foreign companies, this person will need to be a director of the company. There may be a number of general managers and managers involved; resolving the disputes among these other managers is one of the major tasks facing the director.

 

Salespeople of the product

 

Many foreign companies staff their defence team with the salespeople of the product under investigation. After all, they are the ones selling the product in the United States. They have the greatest interest in preserving access to the United States market, and thus many companies feel that the salespeople should do most of the work.

 

The salespeople have an important role to play on the defence team. They know the most about the United States market, and are often able to develop information about competition in the United States market that can help the lawyers prepare a more effective defence of the Commission phase of the investigation. The salespeople are also very knowledgeable about the selling practices of the company, and can usually answer most of the questions about the exports to the United States.

 

The salespeople cannot defend the case by themselves, however. They usually do not have accounting backgrounds, and know very little about the underlying accounting records that are crucial for verifying the responses to the Commerce Department questionnaires. Even if the salespeople can develop the information to prepare the price response, they often do not know the accounting system well enough to verify the information they prepare. This problem is even more severe if the investigation involves cost of production. The salespeople usually know the cost of the product, but they have no idea how the cost information was derived or how to tie the cost back into the accounting records of the company. Because of these limitations, relying on the salespeople alone to defend the company's interests is usually a serious mistake.

 

Financial accountants

 

Financial accountants supplement the salespeople in a very important way they are familiar with the underlying accounting system of the company, and are able to use the accounting records to verify the information in the price response. It is important to remember that the responses to the Commerce Department's questionnaires are useless unless the company can verify the information. (The Commerce Department's verification process is discussed in chapter 11.)

 

The amount of time the financial accountants need to spend on the case varies. Depending on their experience, the salespeople working on the defence team may be able to do most of the work themselves, only using the accountants to answer specific questions. In some cases, it may be necessary for the accountants themselves to prepare much of the information. Companies face an internal dilemma — the accountants can usually prepare the information more quickly and accurately than the salespeople; but the accountants feel that such work is not part of their job. The company can assign the work to either the salespeople or the accountants, provided someone assumes the responsibility for making sure the work is finished.

 

Cost accountants

 

If the investigation becomes a 'cost case' (and most do), it is essential to assign cost accountants to the defence team. The financial accountants are usually not familiar enough with the cost accounting system of the company to prepare the cost information by themselves. They need assistance from the cost accountants.

 

It is usually a good idea to assign a cost accountant to the defence team from the beginning. Since more and more anti-dumping investigations involve cost of production issues, foreign companies are spending more time trying to anticipate and resolve cost issues earlier in the investigation, even before the formal cost case is begun. Moreover, having a cost accountant involved from the beginning avoids the need to repeat a great deal of background information when the cost accountant joins the team later in the process.

 

Specialist in anti-dumping law

 

The United States anti-dumping law is extremely complex. It is almost impossible for a foreign company to defend itself adequately without the advice of an expert. Usually companies choose to retain an American lawyer who specializes in this area of law. Sometimes companies instead work with accountants, consultants, economists or other professionals with experience in this area.

 

Companies normally choose lawyers because only lawyers are able to defend the company throughout the entire course of the investigation. Non-lawyer professionals can assist in the Commission and Commerce Department phases of the investigation. If the case later involves court litigation, however, the non-lawyer must transfer the case to a lawyer. It is usually more efficient to have the lawyer involved from the beginning. Moreover, only a lawyer is sensitive enough to the issues involved to prepare the administrative record (the collection of all the papers and documents submitted to the Commission and Commerce Department during the course of the investigation) in such a way as to improve the chances of success during a court appeal. Only lawyers receive the professional training necessary to make those judgements.

 

When choosing the specialist, the company should inquire very carefully into the experience of the person being considei-ed. How much experience does that person and their firm have in defending anti-dumping investigations? Which person would actually do most of the work? Very often law firms have one or two people with some experience, but they are busy working on matters for other clients. In that case, mostly junior people, without experience, could be assigned to the case. For complex anti-dumping cases, it is important that the firm chosen have a number of experienced people. For example, in some cases it may be necessary to have lawyers at the foreign parent company, at the United States subsidiary, and at another foreign subsidiary all at the same time. Staffing such a case requires a number of experienced people. Foreign companies should make sure that their lawyer has the resources necessary to handle the particular case.

 

Source: Business Guide to Trade Remedies in the United States: Anti-dumping, countervailing and safeguards legislation practices and procedures