It is important to remember that even if many of the economic indicators suggest that the domestic industry is suffering material injury, the case is not over. Under United States law the Commission must also determine whether such material injury was caused by the targeted dumped or subsidized-value imports. Historically, individual Commissioners have used different methods of linking causation and injury. In the past, some Commissioners first examined the condition of the domestic industry and then studied the issue of causation. The more common approach since the 1990s has been to look at injury and causation as intertwined questions. Instead of separating the issues, the Commission follows the statutory outline of looking at volume effects, price effects, and adverse impact.

The Commission looks to various factors to determine causation. Among other things, the Commission considers: (1) whether the volume of imports, or the increase in volume, is significant; (2) whether the imported products have undersold the domestic products; (3) whether the domestic industry has lost sales to imported products; and (4) whether domestic prices have been either depressed or prevented from increasing in an economically reasonable manner. The Commission analyses these factors over the three-year period preceding the petition to discern the trends during that period. If imports have been increasing and prices have either decreased or failed to increase reasonably, the Commission is more likely to find causation.

The foreign company should understand the limited standard that must be met. The United States law is clear that the Commission should not weigh alternative causes of injury. The imports need not be the only cause of injury, or even the major cause of injury. The Commission need only find that imports are 'a' cause of injury. Even if imports are the least significant cause, the Commission may find causation.

Because of this standard, it is difficult to disprove causation. If the domestic industry is suffering injury, the Commission is likely to find that imports at least contributed to that injury, and are thus a legal cause of the injury. Nevertheless, the Commission has made negative findings of causation in numerous cases. Indeed, when the Commission makes a negative determination, the reason is often the lack of a sufficient causal link between imports and the problems of the domestic industry. To the extent possible, the foreign company should develop evidence showing other causes for the domestic industry's troubles.

The Commission injury determinations are the most important part of the overall defence effort. If the determinations are negative, the case ends without any need for burdensome follow up 'administrative reviews' of the anti-dumping order each year. More importantly, the likelihood of success at the Commission is greater than the likelihood of success at the Commerce Department. In about 15% of preliminary investigations and 30%-40% of final investigations, the Commission makes negative determinations. These success rates compare quite favourably to the very rare case in which the Commerce Department does not find dumping margins.

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