Copyright 1995 NLCIFT
Title:AGREEMENT ON IMPLEMENTATION OF ARTICLE VI OF GATT 1994
AGREEMENT ON IMPLEMENTATION OF
ARTICLE VI OF GATT 1994
PART I
Article 1
Principles
An anti-dumping measure shall be applied only under the
circumstances provided for in Article VI of the GATT 1994 and
pursuant to investigations initiated and conducted in
accordance with the provisions of this Agreement. The following
provisions govern the application of Article VI of the GATT 1994
in so far as action is taken under anti-dumping legislation or
regulations.
Article 2
Determination of Dumping
2.1 For the purpose of this Agreement a product is to be
considered as being dumped, i.e., introduced into the commerce of
another country at less than its normal value, if the export
price of the product exported from one country to another is less
than the comparable price, in the ordinary course of trade, for
the like product when destined for consumption in the exporting
country.
2.2 When there are no sales of the like product in the ordinary
course of trade in the domestic market of the exporting country
or when, because of the particular market situation or the low
volume of the sales in the domestic market of the exporting
country, such sales do not permit a proper comparison, the
margin of dumping shall be determined by comparison with a
comparable price of the like product when exported to an
appropriate third country provided that this price is
representative, or with the cost of production in the country of
origin plus a reasonable amount for administrative, selling and
any other costs and for profits.
2.2.1 Sales of the like product in the domestic market
of the exporting country or sales to a third
country at prices below per unit (fixed and
variable) costs of production plus selling,
general and administrative costs may be treated as
not being in the ordinary course of trade by
reason of price and may be disregarded in
determining normal value only if the authorities
determine that such sales are made within an
extended period of time in substantial
quantities and are at prices which do not
provide for the recovery of all costs within a
reasonable period of time. If prices which are
below costs at the time of sale are above weighted
average costs for the period of investigation,
such prices shall be considered to provide for
recovery of costs within a reasonable period of
time.
2.2.1.1 For the purpose of paragraph 2 of this
Article, costs shall normally be calculated
on the basis of records kept by the exporter
or producer under investigation, provided
that such records are in accordance with the
generally accepted accounting principles of
the exporting country and reasonably reflect
the costs associated with the production and
sale of the product under consideration.
Authorities shall consider all available
evidence on the proper allocation of costs,
including that which is made available by the
exporter or producer in the course of the
investigation provided that such allocations
have been historically utilized by the
exporter or producer, in particular in
relation to establishing appropriate
amortization and depreciation periods and
allowances for capital expenditures and other
development costs. Unless already reflected
in the cost allocations under this sub-
paragraph, costs shall be adjusted
appropriately for those non-recurring items
of cost which benefit future and/or current
production, or for circumstances in which
costs during the period of investigation are
affected by start-up operations.
2.2.2 For the purpose of paragraph 2 of this Article,
the amounts for administrative selling and any
other costs and for profits shall be based on
actual data pertaining to production and sales in
the ordinary course of trade of the like product
by the exporter or producer under investigation.
When such amounts cannot be determined on this
basis, the amounts may be determined on the basis
of:
(i) the actual amounts incurred and realized by the
exporter or producer in question in respect of
production and sales in the domestic market of the
country of origin of the same general category of
products;
(ii) the weighted average of the actual amounts
incurred and realized by other exporters or
producers subject to investigation in respect of
production and sales of the like product in the
domestic market of the country of origin;
(iii) any other reasonable method, provided that
the amount for profit so established shall
not exceed the profit normally realized by
other exporters or producers on sales of
products of the same general category in the
domestic market of the country of origin.
2.3 In cases where there is no export price or where it appears
to the authorities concerned that the export price is unreliable
because of association or a compensatory arrangement between the
exporter and the importer or a third party, the export price may
be constructed on the basis of the price at which the imported
products are first resold to an independent buyer, or if the
products are not resold to an independent buyer, or not resold in
the condition as imported, on such reasonable basis as the
authorities may determine.
2.4 A fair comparison shall be made between the export price and
the normal value. This comparison shall be made at the same
level of trade, normally at the ex-factory level, and in respect
of sales made at as nearly as possible the same time. Due
allowance shall be made in each case, on its merits, for
differences which affect price comparability, including
differences in conditions and terms of sale, taxation, levels of
trade, quantities, physical characteristics, and any other
differences which are also demonstrated to affect price
comparability. In the cases referred to in paragraph 3 of
Article 2, allowances for costs, including duties and taxes,
incurred between importation and resale, and for profits
accruing, should also be made. If in these cases, price
comparability has been affected, the authorities shall establish
the normal value at a level of trade equivalent to the level of
trade of the constructed export price, or make due allowance as
warranted under this paragraph. The authorities shall indicate
to the parties in question what information is necessary to
ensure a fair comparison and shall not impose an unreasonable
burden of proof on those parties.
2.4.1 When the price comparison under this paragraph
requires a conversion of currencies, such
conversion should be made using the rate of
exchange on the date of sale, provided that when
a sale of foreign currency on forward markets is
directly linked to the export sale involved, the
rate of exchange in the forward sale shall be
used. Fluctuations in exchange rates shall be
ignored and, in an investigation the authorities
shall allow exporters at least 60 days to have
adjusted their export prices to reflect sustained
movements during the period of investigation.
2.4.2 Subject to the provisions governing fair
comparison in paragraph 4 of this Article, the
existence of margins of dumping during the
investigation phase shall normally be established
on the basis of a comparison of a weighted average
normal value with a weighted average of prices of
all comparable export transactions or by a
comparison of normal value and export prices on a
transaction to transaction basis. A normal value
established on a weighted average basis may be
compared to prices of individual export
transactions if the authorities find a pattern of
export prices which differ significantly among
different purchasers, regions or time periods and
if an explanation is provided why such differences
cannot be taken into account appropriately by the
use of a weighted average-to-weighted average or
transaction-to-transaction comparison.
2.5 In the case where products are not imported directly from
the country of origin but are exported to the country of
importation from an intermediate country, the price at which the
products are sold from the country of export to the country of
importation shall normally be compared with the comparable price
in the country of export. However, comparison may be made with
the price in the country of origin, if, for example, the products
are merely trans-shipped through the country of export, or such
products are not produced in the country of export, or there is
no comparable price for them in the country of export.
2.6 Throughout this Agreement the term "like product" ("produit
similaire") shall be interpreted to mean a product which is
identical, i.e., alike in all respects to the product under
consideration, or in the absence of such a product, another
product which although not alike in all respects, has
characteristics closely resembling those of the product under
consideration.
2.7 This Article is without prejudice to the second
Supplementary Provision to paragraph 1 of Article VI in Annex I
to the GATT 1994.
Article 3
Determination of Injury
3.1 A determination of injury for purposes of Article VI of the
GATT 1994 shall be based on positive evidence and involve an
objective examination of both (a) the volume of the dumped
imports and the effect of the dumped imports on prices in the
domestic market for like products, and (b) the consequent impact
of these imports on domestic producers of such products.
3.2 With regard to the volume of the dumped imports, the
investigating authorities shall consider whether there has been a
significant increase in dumped imports, either in absolute terms
or relative to production or consumption in the importing
country. With regard to the effect of the dumped imports on
prices, the investigating authorities shall consider whether
there has been a significant price undercutting by the dumped
imports as compared with the price of a like product of the
importing country, or whether the effect of such imports is
otherwise to depress prices to a significant degree or prevent
price increases, which otherwise would have occurred, to a
significant degree. No one or several of these factors can
necessarily give decisive guidance.
3.3 Where imports of a product from more than one country are
simultaneously subject to anti-dumping investigations, the
investigating authorities may cumulatively assess effects of such
imports only if they determine that (1) the margin of dumping
established in relation to the imports from each country is more
than de minimis as defined in paragraph 8 of Article 5 and that
the volume of imports from each country is not negligible and (2)
a cumulative assessment of the effects of the imports is
appropriate in light of the conditions of competition between
imported products and the conditions of competition between the
imported products and the like domestic product.
3.4 The examination of the impact of the dumped imports on the
domestic industry concerned shall include an evaluation of all
relevant economic factors and indices having a bearing on the
state of the industry, including actual and potential decline in
sales, profits, output, market share, productivity, return on
investments, or utilization of capacity; factors affecting
domestic prices; the magnitude of the margin of dumping; actual
and potential negative effects on cash flow, inventories,
employment, wages, growth, ability to raise capital or
investments. This list is not exhaustive, nor can one or several
of these factors necessarily give decisive guidance.
3.5 It must be demonstrated that the dumped imports are, through
the effects of dumping, as set forth in paragraphs 2 and 4 of
this Article, causing injury within the meaning of this
Agreement. The demonstration of a causal relationship between
the dumped imports and the injury to the domestic industry shall
be based on an examination of all relevant evidence before the
authorities. The authorities shall also examine any known
factors other than the dumped imports which at the same time are
injuring the domestic industry, and the injuries caused by these
other factors must not be attributed to the dumped imports.
Factors which may be relevant in this respect include,
inter alia, the volume and prices of imports not sold at dumping
prices, contraction in demand or changes in the patterns of
consumption, trade restrictive practices of and competition
between the foreign and domestic producers, developments in
technology and the export performance and productivity of the
domestic industry.
3.6 The effect of the dumped imports shall be assessed in
relation to the domestic production of the like product when
available data permit the separate identification of that
production on the basis of such criteria as the production
process, producers' sales and profits. If such separate
identification of that production is not possible, the effects of
the dumped imports shall be assessed by the examination of the
production of the narrowest group or range of products, which
includes the like product, for which the necessary information
can be provided.
3.7 A determination of a threat of material injury shall be
based on facts and not merely on allegation, conjecture or remote
possibility. The change in circumstances which would create a
situation in which the dumping would cause injury must be clearly
foreseen and imminent. In making a determination regarding
the existence of a threat of material injury, the authorities
should consider, inter alia, such factors as:
(i) a significant rate of increase of dumped imports into
the domestic market indicating the likelihood of
substantially increased importations;
(ii) sufficient freely disposable or an imminent,
substantial increase in capacity of the exporter
indicating the likelihood of substantially increased
dumped exports to the importing country's market,
taking into account the availability of other export
markets to absorb any additional exports;
(iii) whether imports are entering at prices that will
have a significant depressing or suppressing
effect on domestic prices, and would likely
increase demand for further imports; and
(iv) inventories of the product being investigated.
No one of these factors by itself can necessarily give decisive
guidance but the totality of the factors considered must lead to
the conclusion that further dumped exports are imminent and that,
unless protective action is taken, material injury would occur.
3.8 With respect to cases where injury is threatened by dumped
imports, the application of anti-dumping measures shall be
considered and decided with special care.
Article 4
Definition of Domestic Industry
4.1 For the purposes of this Agreement, the term "domestic
industry" shall be interpreted as referring to the domestic
producers as a whole of the like products or to those of them
whose collective output of the products constitutes a major
proportion of the total domestic production of those products,
except that
(i) when producers are related to the exporters or
importers or are themselves importers of the allegedly
dumped product, the term "domestic industry" may be
interpreted as referring to the rest of the producers;
(ii) in exceptional circumstances the territory of a Member
may, for the production in question, be divided into
two or more competitive markets and the producers
within each market may be regarded as a separate
industry if (a) the producers within such market sell
all or almost all of their production of the product in
question in that market, and (b) the demand in that
market is not to any substantial degree supplied by
producers of the product in question located elsewhere
in the territory. In such circumstances, injury may be
found to exist even where a major portion of the total
domestic industry is not injured, provided there is a
concentration of dumped imports into such an isolated
market and provided further that the dumped imports are
causing injury to the producers of all or almost all of
the production within such market.
4.2 When the domestic industry has been interpreted as referring
to the producers in a certain area, i.e., a market as defined in
paragraph 1(ii), anti-dumping duties shall be levied only on
the products in question consigned for final consumption to that
area. When the constitutional law of the importing country does
not permit the levying of anti-dumping duties on such a basis,
the importing Member may levy the anti-dumping duties without
limitation only if (1) the exporters shall have been given an
opportunity to cease exporting at dumped prices to the area
concerned or otherwise give assurances pursuant to Article 8 of
this Agreement, and adequate assurances in this regard have not
been promptly given, and (2) such duties cannot be levied only on
products of specific producers which supply the area in question.
4.3 Where two or more countries have reached under the
provisions of paragraph 8(a) of Article XXIV of the GATT 1994
such a level of integration that they have the characteristics of
a single, unified market, the industry in the entire area of
integration shall be taken to be the domestic industry referred
to in paragraph 1 above.
4.4 The provisions of paragraph 6 of Article 3 shall be
applicable to this Article.
Article 5
Initiation and Subsequent Investigation
5.1 Except as provided for in paragraph 6 of Article 5, an
investigation to determine the existence, degree and effect of
any alleged dumping shall be initiated upon a written application
by or on behalf of the domestic industry.
5.2 An application under paragraph 1 shall include evidence of
(a) dumping, (b) injury within the meaning of Article VI of the
GATT 1994 as interpreted by this Agreement and (c) a causal link
between the dumped imports and the alleged injury. Simple
assertion, unsubstantiated by relevant evidence, cannot be
considered sufficient to meet the requirements of this paragraph.
The application shall contain such information as is reasonably
available to the applicant on the following:
(i) identity of the applicant and a description of the
volume and value of the domestic production of the like
product by the applicant. Where a written application
is made on behalf of the domestic industry, the
application shall identify the industry on behalf of
which the application is made by a list of all known
domestic producers of the like product (or associations
of domestic producers of the like product) and, to the
extent possible, a description of the volume and value
of domestic production of the like product accounted
for by such producers;
(ii) a complete description of the allegedly dumped product,
the names of the country or countries of origin or
export in question, the identity of each known exporter
or foreign producer and a list of known persons
importing the product in question;
(iii) information on prices at which the product in
question is sold when destined for consumption in
the domestic markets of the country or countries
of origin or export (or, where appropriate,
information on the prices at which the product is
sold from the country or countries of origin or
export to a third country or countries or on the
constructed value of the product) and information
on export prices or, where appropriate, on the
prices at which the product is first resold to an
independent buyer in the importing country;
(iv) information on the evolution of the volume of the
allegedly dumped imports, the effect of these imports
on prices of the like product in the domestic market
and the consequent impact of the imports on the
domestic industry, as demonstrated by relevant factors
and indices having a bearing on the state of the
domestic industry, such as those listed in paragraphs 2
and 4 of Article 3.
5.3 The authorities shall examine the accuracy and adequacy of
the evidence provided in the application to determine whether
there is sufficient evidence to justify the initiation of an
investigation.
5.4 An investigation shall not be initiated pursuant to
paragraph 1 unless the authorities have determined, on the basis
of an examination of the degree of support for, or opposition to,
the application expressed by domestic producers of the like
product, that the application has been made by or on behalf of
the domestic industry. The application shall be considered
to have been made "by or on behalf of the domestic industry" if
it is supported by those domestic producers whose collective
output constitutes more than 50 per cent of the total production
of the like product produced by that portion of the domestic
industry expressing either support for or opposition to the
application. However, no investigation shall be initiated when
domestic producers expressly supporting the application account
for less than 25 per cent of total production of the like product
produced by the domestic industry.
5.5 The authorities shall avoid, unless a decision has been made
to initiate an investigation, any publicizing of the application
for the initiation of an investigation. However, after receipt
of a properly documented application and before proceeding to
initiate an investigation, the authorities shall notify the
government of the exporting country concerned.
5.6 If in special circumstances, the authorities concerned
decide to initiate an investigation without having received a
written application by or on behalf of a domestic industry for
the initiation of such investigation, they shall proceed only if
they have sufficient evidence of dumping, injury and a causal
link, as described in paragraph 2, to justify the initiation of
an investigation.
5.7 The evidence of both dumping and injury shall be considered
simultaneously (a) in the decision whether or not to initiate an
investigation, and (b) thereafter, during the course of the
investigation, starting on a date not later than the earliest
date on which in accordance with the provisions of this Agreement
provisional measures may be applied.
5.8 An application under paragraph 1 shall be rejected and an
investigation shall be terminated promptly as soon as the
authorities concerned are satisfied that there is not sufficient
evidence of either dumping or of injury to justify proceeding
with the case. There shall be immediate termination in cases
where the authorities determine that the margin of dumping is
de minimis, or that the volume of dumped imports, actual or
potential, or the injury, is negligible. The margin of dumping
shall be considered to be de minimis if this margin is less than
2 per cent, expressed as a percentage of the export price. The
volume of dumped imports shall normally be regarded as negligible
if the volume of dumped imports from a particular country is
found to account for less than 3 per cent of imports of the like
product in the importing country unless countries which
individually account for less than 3 per cent of the imports of
the like product in the importing country collectively account
for more than 7 per cent of imports of the like product in the
importing country.
5.9 An anti-dumping proceeding shall not hinder the procedures
of customs clearance.
5.10 Investigations shall, except in special circumstances, be
concluded within one year after their initiation, and in no case
more than 18 months.
Article 6
Evidence
6.1 All interested parties in an anti-dumping investigation
shall be given notice of the information which the authorities
require and ample opportunity to present in writing all evidence
which they consider relevant in respect of the investigation in
question.
6.1.1 Exporters or foreign producers receiving
questionnaires used in an anti-dumping
investigation shall be given at least thirty days
for reply. Due consideration should be given
to any request for an extension of the thirty day
period and, upon cause shown, such an extension
should be granted whenever practicable.
6.1.2 Subject to the requirement to protect confidential
information, evidence presented in writing by one
interested party shall be made available promptly
to other interested parties participating in the
investigation.
6.1.3 As soon as an investigation has been initiated,
the authorities shall provide the full text of the
written application received under paragraph 1 of
Article 5 to the known exporters and to the
authorities of the exporting country and make it
available, upon request, to other interested
parties involved. Due regard shall be paid to the
requirement for the protection of confidential
information as provided for in paragraph 5 below.
6.2 Throughout the anti-dumping investigation all interested
parties shall have a full opportunity for the defence of their
interests. To this end, the authorities shall, on request,
provide opportunities for all interested parties to meet those
parties with adverse interests, so that opposing views may be
presented and rebuttal arguments offered. Provision of such
opportunities must take account of the need to preserve
confidentiality and of the convenience to the parties. There
shall be no obligation on any party to attend a meeting, and
failure to do so shall not be prejudicial to that party's case.
Interested parties shall also have the right, on justification,
to present other information orally.
6.3 Oral information provided under paragraph 2 shall be taken
into account by the authorities only insofar as it is
subsequently reproduced in writing and made available to other
interested parties, as provided for in sub-paragraph 1.2.
6.4 The authorities shall whenever practicable provide timely
opportunities for all interested parties to see all information
that is relevant to the presentation of their cases, that is not
confidential as defined in paragraph 5 and that is used by the
authorities in an anti-dumping investigation, and to prepare
presentations on the basis of this information.
6.5 Any information which is by nature confidential, (for
example, because its disclosure would be of significant
competitive advantage to a competitor or because its disclosure
would have a significantly adverse effect upon a person supplying
the information or upon a person from whom he acquired the
information) or which is provided on a confidential basis by
parties to an investigation shall, upon good cause shown, be
treated as such by the authorities. Such information shall not
be disclosed without specific permission of the party submitting
it.
6.5.1 The authorities shall require interested parties
providing confidential information to furnish non-
confidential summaries thereof. These summaries
shall be in sufficient detail to permit a
reasonable understanding of the substance of the
information submitted in confidence. In
exceptional circumstances, such parties may
indicate that such information is not susceptible
of summary. In such exceptional circumstances, a
statement of the reasons why summarization is not
possible must be provided.
6.5.2 If the authorities find that a request for
confidentiality is not warranted and if the
supplier of the information is either unwilling to
make the information public or to authorize its
disclosure in generalized or summary form, the
authorities may disregard such information unless
it can be demonstrated to their satisfaction from
appropriate sources that the information is
correct.
6.6 Except in circumstances provided for in paragraph 8, the
authorities shall during the course of an investigation satisfy
themselves as to the accuracy of the information supplied by
interested parties upon which their findings are based.
6.7 In order to verify information provided or to obtain further
details, the authorities may carry out investigations in other
countries as required, provided they obtain the agreement of the
firms concerned and provided they notify the representatives of
the government of the country in question and unless the latter
object to the investigation. The procedures described in Annex I
shall apply to verifications carried out in exporting countries.
The authorities shall, subject to the requirement to protect
confidential information, make the results of any verifications
available or provide disclosure thereof pursuant to paragraph 9,
to the firms to which they pertain and may make such results
available to the applicants.
6.8 In cases in which any interested party refuses access to, or
otherwise does not provide, necessary information within a
reasonable period or significantly impedes the investigation,
preliminary and final determinations, affirmative or negative,
may be made on the basis of the facts available. The provisions
of Annex II shall be observed in the application of this
paragraph.
6.9 The authorities shall, before a final determination is made,
inform all interested parties of the essential facts under
consideration which form the basis for the decision whether to
apply definitive measures. Such disclosure should take place in
sufficient time for the parties to defend their interests.
6.10 The authorities shall, as a rule, determine an individual
margin of dumping for each known exporter or producer concerned
of the product under investigation. In cases where the number of
exporters, producers, importers or types of products involved is
so large as to make such a determination impracticable, the
authorities may limit their examination either to a reasonable
number of interested parties or products by using samples which
are statistically valid on the basis of information available to
the authorities at the time of the selection, or to the largest
percentage of the volume of the exports from the country in
question which can reasonably be investigated.
6.10.1 Any selection of exporters, producers, importers
or types of products made under this paragraph
shall preferably be chosen in consultation with
and with the consent of the exporters, producers
or importers concerned.
6.10.2 In cases where the authorities have limited their
examination, as provided for in this paragraph,
they shall nevertheless determine an individual
margin of dumping for any exporter or producer not
initially selected who submits the necessary
information in time for that information to be
considered during the course of the investigation,
except where the number of exporters or producers
is so large that individual examinations would be
unduly burdensome to the authorities and prevent
the timely completion of the investigation.
Voluntary responses shall not be discouraged.
6.11 For the purposes of this Agreement, "interested parties"
shall include:
(i) an exporter or foreign producer or the importer of a
product subject to investigation, or a trade or
business association a majority of the members of which
are producers, exporters or importers of such product;
(ii) the government of the exporting country; and
(iii) a producer of the like product in the importing
country or a trade and business association a
majority of the members of which produce the like
product in the importing country.
This list shall not preclude Members from allowing domestic or
foreign parties other than those mentioned above to be included
as interested parties.
6.12 The authorities shall provide opportunities for industrial
users of the product under investigation, and for representative
consumer organizations in cases where the product is commonly
sold at the retail level, to provide information which is
relevant to the investigation regarding dumping, injury and
causality.
6.13 The authorities shall take due account of any difficulties
experienced by interested parties, in particular small companies,
in supplying information requested and provide any assistance
practicable.
6.14 The procedures set out above are not intended to prevent the
authorities of a Member from proceeding expeditiously with regard
to initiating an investigation, reaching preliminary or final
determinations, whether affirmative or negative, or from applying
provisional or final measures, in accordance with relevant
provisions of this Agreement.
Article 7
Provisional Measures
7.1 Provisional measures may be applied only if:
(i) an investigation has been initiated in accordance with
the provisions of Article 5, a public notice has been
given to that effect and interested parties have been
given adequate opportunities to submit information and
make comments;
(ii) a preliminary affirmative determination has been made
of dumping and consequent injury to a domestic
industry; and
(iii) the authorities concerned judge such measures
necessary to prevent injury being caused during
the investigation.
7.2 Provisional measures may take the form of a provisional duty
or, preferably, a security - by cash deposit or bond - equal to
the amount of the anti-dumping duty provisionally estimated,
being not greater than the provisionally estimated margin of
dumping. Withholding of appraisement is an appropriate
provisional measure, provided that the normal duty and the
estimated amount of the anti-dumping duty be indicated and as
long as the withholding of appraisement is subject to the same
conditions as other provisional measures.
7.3 Provisional measures shall not be applied sooner than 60
days from the date of initiation of the investigation.
7.4 The application of provisional measures shall be limited to
as short a period as possible, not exceeding four months or, on
decision of the authorities concerned, upon request by exporters
representing a significant percentage of the trade involved, to a
period not exceeding six months. When authorities, in the course
of an investigation, examine whether a duty lower than the margin
of dumping would be sufficient to remove injury, these periods
may be six and nine months, respectively.
7.5 The relevant provisions of Article 9 shall be followed in
the application of provisional measures.
Article 8
Price Undertakings
8.1 Proceedings may be suspended or terminated without the
imposition of provisional measures or anti-dumping duties upon
receipt of satisfactory voluntary undertakings from any exporter
to revise its prices or to cease exports to the area in question
at dumped prices so that the authorities are satisfied that the
injurious effect of the dumping is eliminated. Price increases
under such undertakings shall not be higher than necessary to
eliminate the margin of dumping. It is desirable that the price
increases be less than the margin of dumping if such increases
would be adequate to remove the injury to the domestic industry.
8.2 Price undertakings shall not be sought or accepted from
exporters unless the authorities of the importing country have
made a preliminary affirmative determination of dumping and
injury caused by such dumping.
8.3 Undertakings offered need not be accepted if the authorities
consider their acceptance impractical, for example, if the number
of actual or potential exporters is too great, or for other
reasons, including reasons of general policy. Should the case
arise and where practicable, the authorities shall provide to the
exporter the reasons which have led them to consider acceptance
of an undertaking as inappropriate, and shall, to the extent
possible, give the exporter an opportunity to make comments
thereon.
8.4 If the undertakings are accepted, the investigation of
dumping and injury shall nevertheless be completed if the
exporter so desires or the authorities so decide. In such a
case, if a negative determination of dumping or injury is made,
the undertaking shall automatically lapse except in cases where
such a determination is due in large part to the existence of a
price undertaking. In such cases the authorities may require
that an undertaking be maintained for a reasonable period
consistent with the provisions of this Agreement. In the event
that an affirmative determination of dumping and injury is made,
the undertaking shall continue consistent with its terms and the
provisions of this Agreement.
8.5 Price undertakings may be suggested by the authorities of
the importing country, but no exporter shall be forced to enter
into such an undertaking. The fact that exporters do not offer
such undertakings, or do not accept an invitation to do so, shall
in no way prejudice the consideration of the case. However, the
authorities are free to determine that a threat of injury is more
likely to be realized if the dumped imports continue.
8.6 Authorities of an importing country may require any exporter
from whom undertakings have been accepted to provide periodically
information relevant to the fulfilment of such undertakings, and
to permit verification of pertinent data. In case of violation
of undertakings, the authorities of the importing country may
take, under this Agreement in conformity with its provisions,
expeditious actions which may constitute immediate application of
provisional measures using the best information available. In
such cases definitive duties may be levied in accordance with
this Agreement on goods entered for consumption not more than
ninety days before the application of such provisional measures,
except that any such retroactive assessment shall not apply to
imports entered before the violation of the undertaking.
Article 9
Imposition and Collection of Anti-Dumping Duties
9.1 The decision whether or not to impose an anti-dumping duty
in cases where all requirements for the imposition have been
fulfilled and the decision whether the amount of the anti-dumping
duty to be imposed shall be the full margin of dumping or less,
are decisions to be made by the authorities of the importing
country or customs territory. It is desirable that the
imposition be permissive in all countries or customs territories
Members, and that the duty be less than the margin, if such
lesser duty would be adequate to remove the injury to the
domestic industry.
9.2 When an anti-dumping duty is imposed in respect of any
product, such anti-dumping duty shall be collected in the
appropriate amounts in each case, on a non-discriminatory basis
on imports of such product from all sources found to be dumped
and causing injury, except as to imports from those sources from
which price undertakings under the terms of this Agreement have
been accepted. The authorities shall name the supplier or
suppliers of the product concerned. If, however, several
suppliers from the same country are involved, and it is
impracticable to name all these suppliers, the authorities may
name the supplying country concerned. If several suppliers from
more than one country are involved, the authorities may name
either all the suppliers involved, or, if this is impracticable,
all the supplying countries involved.
9.3 The amount of the anti-dumping duty shall not exceed the
margin of dumping as established under Article 2.
9.3.1 When the amount of the anti-dumping duty is
assessed on a retrospective basis, the
determination of the final liability for payment
of anti-dumping duties shall take place as soon as
possible, normally within 12 months, and in no
case more than 18 months, after the date on which
a request for a final assessment of the amount of
anti-dumping duty has been made. Any refund
shall be made promptly and normally in not more
than 90 days following the determination of final
liability made pursuant to this sub-paragraph. In
any case, where a refund is not made within
90 days the authorities shall provide an
explanation if so requested.
9.3.2 When the amount of the anti-dumping duty is
assessed on a prospective basis, provision shall
be made for a prompt refund, upon request, of any
duty paid in excess of the margin of dumping. A
refund of any such duty paid in excess of the
actual margin of dumping shall normally take place
within 12 months, and in no case more than
18 months, after the date on which a request for a
refund, duly supported by evidence, has been made
by an importer of the product subject to the anti-
dumping duty. The refund authorized should
normally be made within 90 days of the above-noted
decision.
9.3.3 In determining whether and to what extent a
reimbursement should be made when the export price
is constructed in accordance with paragraph 3 of
Article 2, authorities should take account of any
change in normal value, any change of costs
incurred between importation and resale, and any
movement in the resale price which is duly
reflected in subsequent selling prices, and should
calculate the export price with no deduction for
the amount of anti-dumping duties paid when
conclusive evidence of the above is provided.
9.4 When the authorities have limited their examination in
accordance with the second sentence of paragraph 10 of Article 6,
any anti-dumping duty applied to imports from exporters or
producers not included in the examination shall not exceed:
(a) the weighted average margin of dumping established with
respect to the selected exporters or producers or,
(b) where the liability for payment of anti-dumping duties
is calculated on the basis of a prospective normal
value, the difference between the weighted average
normal value of the selected exporters or producers and
the export prices of exporters or producers not
individually examined,
provided that the authorities shall disregard for the purpose of
this paragraph any zero and de minimis margins and margins
established under the circumstances referred to in paragraph 8 of
Article 6. The authorities shall apply individual duties or
normal values to imports from any exporter or producer not
included in the examination who has provided the necessary
information during the course of the investigation, as provided
for in sub-paragraph 10.2 of Article 6.
9.5 If a product is subject to anti-dumping duties in an
importing Member, the authorities shall promptly carry out a
review for the purpose of determining individual margins of
dumping for any exporters or producers in the exporting country
in question who have not exported the product to the importing
Member during the period of investigation provided that these
exporters or producers can show that they are not related to any
of the exporters or producers in the exporting country who are
subject to the anti-dumping duties on the product. Such a review
shall be initiated and carried out on an accelerated basis,
compared to normal duty assessment and review proceedings in the
importing country. No anti-dumping duties shall be levied on
imports from such exporters or producers while the review is
being carried out. The authorities may, however, withhold
appraisement and/or request guarantees to ensure that, should
such a review result in a determination of dumping in respect of
such producers or exporters, anti-dumping duties can be levied
retroactively to the date of the initiation of the review.
Article 10
Retroactivity
10.1 Provisional measures and anti-dumping duties shall only be
applied to products which enter for consumption after the time
when the decision taken under paragraph 1 of Article 7 and
paragraph 1 of Article 9, respectively, enters into force,
subject to the exceptions set out in this Article.
10.2 Where a final determination of injury (but not of a threat
thereof or of a material retardation of the establishment of an
industry) is made or, in the case of a final determination of a
threat of injury, where the effect of the dumped imports would,
in the absence of the provisional measures, have led to a
determination of injury, anti-dumping duties may be levied
retroactively for the period for which provisional measures, if
any, have been applied.
10.3 If the definitive anti-dumping duty is higher than the
provisional duty paid or payable, or the amount estimated for the
purpose of the security, the difference shall not be collected.
If the definitive duty is lower than the provisional duty paid or
payable, or the amount estimated for the purpose of the security,
the difference shall be reimbursed or the duty recalculated, as
the case may be.
10.4 Except as provided in paragraph 2 above, where a
determination of threat of injury or material retardation is made
(but no injury has yet occurred) a definitive anti-dumping duty
may be imposed only from the date of the determination of threat
of injury or material retardation and any cash deposit made
during the period of the application of provisional measures
shall be refunded and any bonds released in an expeditious
manner.
10.5 Where a final determination is negative, any cash deposit
made during the period of the application of provisional measures
shall be refunded and any bonds released in an expeditious
manner.
10.6 A definitive anti-dumping duty may be levied on products
which were entered for consumption not more than 90 days prior to
the date of application of provisional measures, when the
authorities determine for the dumped product in question that:
(i) there is a history of dumping which caused injury or
that the importer was, or should have been, aware that
the exporter practises dumping and that such dumping
would cause injury, and
(ii) the injury is caused by massive dumped imports of a
product in a relatively short time which in light of
the timing and the volume of the dumped imports and
other circumstances (such as a rapid build-up of
inventories of the imported product) is likely to
seriously undermine the remedial effect of the
definitive anti-dumping duty to be applied, provided
that the importers concerned have been given an
opportunity to comment.
10.7 The authorities may, after initiating an investigation, take
such measures as the withholding of appraisement or assessment as
may be necessary to collect anti-dumping duties retroactively as
provided for in paragraph 6, once they have sufficient evidence
that the conditions set forth in that paragraph are satisfied.
10.8 No duties shall be levied retroactively pursuant to
paragraph 6, on products entered for consumption prior to the
date of initiation of the investigation.
Article 11
Duration and Review of Anti-Dumping Duties and
Price Undertakings
11.1 An anti-dumping duty shall remain in force only as long as
and to the extent necessary to counteract dumping which is
causing injury.
11.2 The authorities shall review the need for the continued
imposition of the duty, where warranted, on their own initiative
or, provided that a reasonable period of time has elapsed since
the imposition of the definitive anti-dumping duty, upon request
by any interested party which submits positive information
substantiating the need for a review. Interested parties
shall have the right to request the authorities to examine
whether the continued imposition of the duty is necessary to
offset dumping, whether the injury would be likely to continue or
recur if the duty were removed or varied, or both. If, as a
result of the review under this paragraph, the authorities
determine that the anti-dumping duty is no longer warranted, it
shall be terminated immediately.
11.3 Notwithstanding the provisions of paragraphs 1 and 2, any
definitive anti-dumping duty shall be terminated on a date not
later than five years from its imposition (or from the date of
the most recent review under paragraph 2 if that review has
covered both dumping and injury, or under this paragraph), unless
the authorities determine, in a review initiated before that date
on their own initiative or upon a duly substantiated request made
by or on behalf of the domestic industry within a reasonable
period of time prior to that date, that the expiry of the duty
would be likely to lead to continuation or recurrence of dumping
and injury. The duty may remain in force pending the outcome
of such a review.
11.4 The provisions of Article 6 regarding evidence and procedure
shall apply to any review carried out under this Article. Any
such review shall be carried out expeditiously and shall normally
be concluded within twelve months of the date of initiation of
the review.
11.5 The provisions of this Article shall mutatis mutandis apply
to price undertakings accepted under Article 8.
Article 12
Public Notice and Explanation of Determinations
12.1 When the authorities are satisfied that there is sufficient
evidence to justify the initiation of an anti-dumping
investigation pursuant to Article 5, the Member or Members the
products of which are subject to such investigation and other
interested parties known to the investigating authorities to have
an interest therein shall be notified and a public notice shall
be given.
12.1.1 A public notice of the initiation of an investigation
shall contain or otherwise make available through a
separate reportadequate information on the
following:
(i) the name of the exporting country or countries and the
product involved;
(ii) the date of initiation of the investigation;
(iii) the basis on which dumping is alleged in the
application;
(iv) a summary of the factors on which the allegation of
injury is based;
(v) the address to which representations by interested
parties should be directed;
(vi) the time-limits allowed to interested parties for
making their views known.
12.2 Public notice shall be given of any preliminary or final
determination, whether affirmative or negative, of any decision
to accept an undertaking pursuant to Article 8, of the
termination of such an undertaking, and of the revocation of a
determination. Each such notice shall set forth or otherwise
make available through a separate report in sufficient detail the
findings and conclusions reached on all issues of fact and law
considered material by the investigating authorities. All such
notices and reports shall be forwarded to the Member or Members
the products of which are subject to such determination or
undertaking and to other interested parties known to have an
interest therein.
12.2.1 A public notice of the imposition of provisional
measures shall set forth or otherwise make
available through a separate report sufficiently
detailed explanations for the preliminary
determinations on dumping and injury and shall
refer to the matters of fact and law which have
led to arguments being accepted or rejected. Such
a notice or report shall, due regard being paid to
the requirement for the protection of confidential
information, contain in particular:
(i) the names of the suppliers, or when this is
impracticable, the supplying countries involved;
(ii) a description of the product which is sufficient
for customs purposes;
(iii) the margins of dumping established and a full
explanation of the reasons for the
methodology used in the establishment and
comparison of the export price and the normal
value under Article 2;
(iv) considerations relevant to the injury
determination as set out in Article 3;
(v) the main reasons leading to the determination.
12.2.2 A public notice of conclusion or suspension of an
investigation in the case of an affirmative
determination providing for the imposition of a
definitive duty or the acceptance of a price
undertaking shall contain or otherwise make
available through a separate report all relevant
information on the matters of fact and law and
reasons which have led to the imposition of final
measures or the acceptance of a price undertaking,
due regard being paid to the requirement for the
protection of confidential information. The
notice or report shall in particular contain the
information described .in sub-paragraph 2.1 of
Article 12, as well as the reasons for the
acceptance or rejection of relevant arguments or
claims made by the exporters and importers, and
the basis for any decision made under sub-
paragraph 10.2 of Article 6.
12.2.3 A public notice of the termination or suspension
of an investigation following the acceptance of an
undertaking pursuant to Article 8 shall include or
otherwise make available through a separate report
the non-confidential part of this undertaking.
12.3 The provisions of this Article shall apply mutatis mutandis
to the initiation and completion of reviews pursuant to
Article 11 and to decisions under Article 10 to apply duties
retroactively.
Article 13
Judicial Review
Each Member, whose national legislation contains provisions
on anti-dumping measures, shall maintain judicial, arbitral or
administrative tribunals or procedures for the purpose,
inter alia, of the prompt review of administrative actions
relating to final determinations and reviews of determinations
within the meaning of Article 11 of this Agreement. Such
tribunals or procedures shall be independent of the authorities
responsible for the determination or review in question.
Article 14
Anti-dumping action on behalf of a third country
14.1 An application for anti-dumping action on behalf of a third
country shall be made by the authorities of the third country
requesting action.
14.2 Such an application shall be supported by price information
to show that the imports are being dumped and by detailed
information to show that the alleged dumping is causing injury to
the domestic industry concerned in the third country. The
government of the third country shall afford all assistance to
the authorities of the importing country to obtain any further
information which the latter may require.
14.3 The authorities of the importing country in considering such
an application shall consider the effects of the alleged dumping
on the industry concerned as a whole in the third country; that
is to say the injury shall not be assessed in relation only to
the effect of the alleged dumping on the industry's export to the
importing country or even on the industry's total exports.
14.4 The decision whether or not to proceed with a case shall
rest with the importing country. If the importing country
decides that it is prepared to take action, the initiation of the
approach to the Council for Trade in Goods seeking its approval
for such action shall rest with the importing country.
Article 15
Developing country Members
It is recognized that special regard must be given by
developed country Members to the special situation of developing
country Members when considering the application of anti-dumping
measures under this Agreement. Possibilities of constructive
remedies provided for by this Agreement shall be explored before
applying anti-dumping duties where they would affect the
essential interests of developing country Members.
PART II
Article 16
Committee on Anti-Dumping Practices
16.1 There shall be established under this Agreement a Committee
on Anti-Dumping Practices (hereinafter referred to as the
"Committee") composed of representatives from each of the
Members. The Committee shall elect its own Chairman and shall
meet not less than twice a year and otherwise as envisaged by
relevant provisions of this Agreement at the request of any
Member. The Committee shall carry out responsibilities as
assigned to it under this Agreement or by the Members and it
shall afford Members the opportunity of consulting on any matters
relating to the operation of the Agreement or the furtherance of
its objectives. The MTO Secretariat shall act as the secretariat
to the Committee.
16.2 The Committee may set up subsidiary bodies as appropriate.
16.3 In carrying out their functions, the Committee and any
subsidiary bodies may consult with and seek information from any
source they deem appropriate. However, before the Committee or a
subsidiary body seeks such information from a source within the
jurisdiction of a Member, it shall inform the Member involved.
It shall obtain the consent of the Member and any firm to be
consulted.
16.4 Members shall report without delay to the Committee all
preliminary or final anti-dumping actions taken. Such report
will be available in the MTO Secretariat for inspection by
government representatives. The Members shall also submit, on a
semi-annual basis, reports of any anti-dumping actions taken
within the preceding six months.
16.5 Each Member shall notify the Committee (a) which of its
authorities are competent to initiate and conduct investigations
referred to in Article 5 and (b) its domestic procedures
governing the initiation and conduct of such investigations.
Article 17
Consultation and Dispute Settlement
17.1 Except as otherwise provided herein, the Understanding on
Rules and Procedures Governing the Settlement of Disputes is
applicable to consultations and the settlement of disputes under
this Agreement.
17.2 Each Member shall afford sympathetic consideration to, and
shall afford adequate opportunity for consultation regarding,
representations made by another Member with respect to any matter
affecting the operation of this Agreement.
17.3 If any Member considers that any benefit accruing to it,
directly or indirectly, under this Agreement is being nullified
or impaired, or that the achievement of any objective is being
impeded, by another Member or Members, it may, with a view to
reaching a mutually satisfactory resolution of the matter,
request in writing consultations with the Member or Members in
question. Each Member shall afford sympathetic consideration to
any request from another Member for consultation.
17.4 If the Member that requested consultations considers that
the consultations pursuant to paragraph 3 of Article 17 have
failed to achieve a mutually agreed solution and final action has
been taken by the administering authorities of the importing
Member to levy definitive anti-dumping duties or to accept price
undertakings, it may refer the matter to the Dispute Settlement
Body (DSB). When a provisional measure has a significant impact
and the Member considers the measure was taken contrary to the
provisions of paragraph 1 of Article 7 of this Agreement, that
Member may also refer such matter to the DSB.
17.5 The DSB shall, at the request of the complaining party,
establish a panel to examine the matter based upon:
(a) a written statement of the Member making the request
indicating how a benefit accruing to it, directly or
indirectly, under this Agreement has been nullified or
impaired, or that the achieving of the objectives of
the Agreement is being impeded, and
(b) the facts made available in conformity with appropriate
domestic procedures to the authorities of the importing
Member.
17.6 In examining the matter in paragraph 5:
(i) in its assessment of the facts of the matter, the panel
shall determine whether the authorities' establishment
of the facts was proper and whether their evaluation of
those facts was unbiased and objective. If the
establishment of the facts was proper and the
evaluation was unbiased and objective, even though the
panel might have reached a different conclusion, the
evaluation shall not be overturned;
(ii) the panel shall interpret the relevant provisions of
the Agreement in accordance with customary rules of
interpretation of public international law. Where the
panel finds that a relevant provision of the Agreement
admits of more than one permissible interpretation, the
panel shall find the authorities' measure to be in
conformity with the Agreement if it rests upon one of
those permissible interpretations.
17.7 Confidential information provided to the panel shall not be
disclosed without formal authorization from the person, body or
authority providing such information. Where such information is
requested from the panel but release of such information by the
panel is not authorized, a non-confidential summary of the
information, authorized by the person, body or authority
providing the information, shall be provided.
PART III
Article 18
Final Provisions
18.1 No specific action against dumping of exports from another
Member can be taken except in accordance with the provisions
of the GATT 1994, as interpreted by this Agreement.
18.2 Reservations may not be entered in respect of any of the
provisions of this Agreement without the consent of the
other Members.
18.3 Subject to sub-paragraphs 1 and 2, the provisions of this
Agreement shall apply to investigations, and reviews of existing
measures, initiated pursuant to applications which have been made
on or after the date of entry into force for a Member of the
Agreement Establishing the MTO.
18.3.1 With respect to the calculation of margins of
dumping in refund procedures under Article 9.3, the rules
used in the most recent determination or review of dumping
shall apply.
18.3.2 For the purposes of paragraph 3 of Article 11,
existing anti-dumping measures shall be deemed to be imposed
on a date not later than the date of entry into force for a
Member of the Agreement Establishing the MTO, except in
cases in which the domestic legislation of a Member in force
at that date already included a clause of the type provided
for in that paragraph.
18.4 (a) Each government accepting or acceding to the MTO shall
take all necessary steps, of a general or particular
character, to ensure, not later than the date of entry
into force of the Agreement Establishing the MTO for
it, the conformity of its laws, regulations and
administrative procedures with the provisions of this
Agreement as they may apply for the Member in question.
(b) Each Member shall inform the Committee of any changes
in its laws and regulations relevant to this Agreement
and in the administration of such laws and regulations.
18.5 The Committee shall review annually the implementation and
operation of this Agreement taking into account the objectives
thereof. The Committee shall annually inform the Council for
Trade in Goods of developments during the period covered by such
reviews.
18.6 The Annexes to this Agreement constitute an integral part
thereof.
ANNEX I
Procedures for On-The-Spot Investigations Pursuant
to paragraph 7 of Article 6
1. Upon initiation of an investigation, the authorities of the
exporting country and the firms known to be concerned should
be informed of the intention to carry out on-the-spot
investigations.
2. If in exceptional circumstances it is intended to include
non-governmental experts in the investigating team, the
firms and the authorities of the exporting country should be
so informed. Such non-governmental experts should be
subject to effective sanctions for breach of confidentiality
requirements.
3. It should be standard practice to obtain explicit agreement
of the firms concerned in the exporting country before the
visit is finally scheduled.
4. As soon as the agreement of the firms concerned has been
obtained the investigating authorities should notify the
authorities of the exporting country of the names and
addresses of the firms to be visited and the dates agreed.
5. Sufficient advance notice should be given to the firms in
question before the visit is made.
6. Visits to explain the questionnaire should only be made at
the request of an exporting firm. Such a visit may only be
made if the authorities of the importing country notify the
representatives of the government of the country in question
and unless the latter do not object to the visit.
7. As the main purpose of the on-the-spot investigation is to
verify information provided or to obtain further details, it
should be carried out after the response to the
questionnaire has been received unless the firm agrees to
the contrary and the government of the exporting country is
informed by the investigating authorities of the anticipated
visit and does not object to it; further, it should be
standard practice prior to the visit to advise the firms
concerned f the general nature of the information to be
verified and of any further information which needs to be
provided, though this should not preclude requests to be
made on the spot for further details to be provided in the
light of information obtained.
8. Enquiries or questions put by the authorities or firms of
the exporting countries and essential to a successful on-
the-spot investigation should, whenever possible, be
answered before the visit is made.
ANNEX II
Best Information Available in Terms of paragraph 8 of Article 6
1. As soon as possible after the initiation of the
investigation, the investigating authorities should specify
in detail the information required from any interested
party, and the way in which that information should be
structured by the interested party in its response. The
authorities should also ensure that the party is aware that
if information is not supplied within a reasonable time, the
authorities will be free to make determinations on the basis
of the facts available, including those contained in the
request for the initiation of the investigation by the
domestic industry.
2. The authorities may also request that an interested party
provide its response in a particular medium (e.g., computer
tape) or computer language. Where such a request is made,
the authorities should consider the reasonable ability of
the interested party to respond in the preferred medium or
computer language, and should not request the company to use
for its response a computer system other than that used by
the firm. The authority should not maintain a request for a
computerized response, if the interested party does not
maintain computerized accounts and if presenting the
response as requested would result in an unreasonable extra
burden on the interested party, e.g., it would entail
unreasonable additional cost and trouble. The authorities
should not maintain a request for a response in a particular
medium or computer language if the interested party does not
maintain its computerized accounts in such medium or
computer language and if presenting the response as
requested would result in an unreasonable extra burden on
the interested party, e.g., it would entail unreasonable
additional cost and trouble.
3. All information which is verifiable, which is appropriately
submitted so that it can be used in the investigation
without undue difficulties and which is supplied in a timely
fashion, and, where applicable, supplied in a medium or
computer language requested by the authorities, should be
taken into account when determinations are made. If a party
does not respond in the preferred medium or computer
language but the authorities find that the circumstances set
out in paragraph 2 have been satisfied, this should not be
considered to significantly impede the investigation.
4. Where the authorities do not have the ability to process
information if provided in a particular medium (e.g.,
computer tape) the information should be supplied in the
form of written material or any other form acceptable to the
authorities.
5. Even though the information provided may not be ideal in all
respects, this should not justify the authorities from
disregarding it provided the interested party has acted to
the best of its ability.
6. If evidence or information is not accepted, the supplying
party should be informed forthwith of the reasons thereof
and have an opportunity to provide further explanations
within a reasonable period, due account being taken of the
time-limits of the investigation. If the explanations are
considered by the authorities as not being satisfactory, the
reasons for rejection of such evidence or information should
be given in any published findings.
7. If the authorities have to base their determinations,
including those with respect to normal value, on information
from a secondary source, including the information supplied
in the request for the initiation of the investigation, they
should do so with special circumspection. In such cases,
the authorities should, where practicable, check the
information from other independent sources at their
disposal, such as published price lists, official import
statistics and customs returns, and from the information
obtained from other interested parties during the
investigation. It is clear, however, that if an interested
party does not co-operate and thus relevant information is
being withheld from the authorities, this situation could
lead to a result which is less favourable to the party than
if the party did co-operate.