The Unsettled Business: Should Antidumping Laws be Replaced by Competition (Antitrust) Law under Free Trade

Abstract

Some academics conclude that antidumping laws are no longer necessary in the era of the North American Free Trade Agreement and can be replaced by competition (antitrust) laws. However, the author argues that Canada and the United States have not achieved the degree of free trade necessary to eliminate the need for antidumping law. The article begins by providing an in depth analysis of the operation of the North American Free Trade Agreement (NAFTA), the Free Trade Agreement (FTA) and the General Agreement of Tariffs and Trade (GATT) before examining the Canadian and American approaches to antidumping law. Then, using the writings and concepts of Jacob Viner, the author demonstrates that non-predatory, intermittent dumping may continue to occur under the NAFTA, thus necessitating the maintenance of antidumping law in a modified form. The author also submits that existing bodies of competition law could not fill the void created by a repeal of the antidumping laws, primarily because of the fundamental differences which exist between Canadian and American approaches to antitrust law. In order to do so, a significant amount of American material is also examined.