Counsel
Analysis & trends
Judicial review of decision of UK Trade Remedies Authority (TRA) rejected
In the first decision of its kind, the English High Court has rejected an application by Caterpillar (Xuzhou) Limited (Caterpillar), a US owned Chinese manufacturer, for judicial review of a provisional affirmative decision (PAD) by the TRA to recommend the imposition of an anti-dumping duty of 64.17% on excavators imported from China and the Secretary of State’s subsequent decision to require the provision of a guarantee in respect of such a duty.
The judge refused permission to apply for judicial review because of the lack of merit in the grounds put forward by Caterpillar and also because the claim had become academic.
Caterpillar argued that by not notifying Caterpillar of the investigation, the TRA had breached its duty under the Taxation (Cross-border Trade) Act 2018, Sch 4, paragraph 9(5)(e) to “notify … interested parties”. The judge found that this notification obligation concerns (only) interested parties “known to the TRA” and, at the outset, the TRA held data identifying Caterpillar as exporting from the United States of America (rather than China, the relevant exporting country). Consistent with the ruling of the Appeal Body of the WTO in Mexico – Definitive Anti-Dumping Measures on Beef and Rice[1], the judge held that the TRA is not under a positive duty to ensure that an interested party knows of an investigation. Instead, the UK Dumping and Subsidy Regulations envisage that it is for interested parties to make themselves known to the TRA.[2]
The judge also found that the claim had become academic.[3] Caterpillar had belatedly made contact with the TRA and succeeded in obtaining an individual duty amount of 28.37% rather than the “residual” rate of 64.17% recommended in the PAD. This meant that by the time of the hearing in the High Court, Caterpillar knew that the anti-dumping duty would not be levied at the rate in the PAD which it was challenging.
It also transpired that Caterpillar had in fact had knowledge of the TRA’s investigation on or about 16 November 2023 (the day after the notice of initiation of the investigation), but had not contacted the TRA until eleven months after the window for registering as an interested party had closed. The judge found that, in failing to disclose its knowledge of the investigation, Caterpillar had breached the duty of candour owed to the court in judicial review proceedings and the judge would have rejected the application on this basis as well.
Judgment in this case was given on 9 May 2025. On 13 May 2025, the TRA issued its Final Determination, recommending an anti-dumping duty on Caterpillar of 18.81%. The Secretary of State for Business and Trade accepted this recommendation on 15 May 2025.
This case shows the importance of monitoring new TRA investigations and ensuring that any interested party registers during the window provided by the TRA. Further, interested parties should exhaust the process with the TRA (including seeking reconsideration of a final determination) before considering judicial review proceedings.
The case is reported as Caterpillar (Xuzhou) Ltd) v Secretary of State for Business and Trade & Trade Remedies Authority [2025] EWHC 1124 (Admin) (9 May 2025).
