The Teleporting of ‘Confidential’ Information from One Anti-Dumping Investigation to Another in South African Law

The International Trade Administration Commission of South Africa (ITAC) has the mandate to conduct trade remedy investigations, which include anti-dumping. The finding of injurious dumping turns on the quality and veracity of the information that is tendered by the applicant and interested parties to ITAC. It is presumed by the interested parties that the information submitted during one investigation is submitted on the basis that it will be used only for the current investigation and not in subsequent investigations by ITAC. However, on 19 November 2021, in the anti-dumping investigation on frozen potato chips, ITAC self-initiated an investigation based on confidential information that was tendered by parties during a prior case as the basis to initiate a new anti-dumping case. ITAC subsequently denied this alleging that this information was ‘manipulated’ such that it was different from the information tendered in the earlier investigation. Regardless, this article explores the question of whether ITAC can initiate a new anti-dumping investigation based on confidential information submitted by a party during a prior anti-dumping investigation. The article contends that ITAC is not allowed in South African law to use confidential information tendered in a prior investigation in a new investigation.