RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/AHG/W/128
1 February 2002
(02-0514)
Committee on Anti-Dumping Practices
Ad Hoc Group on ImplementationOriginal:  English
IMPLEMENTATION-RELATED ISSUES REFERRED TO THE
COMMITTEE ON ANTI-DUMPING PRACTICES AND ITS
WORKING GROUP ON IMPLEMENTATION
Paper Submitted by India
The following communication, dated 1 February 2002, has been received from the Permanent
Mission of India.
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Operationalizing Article 15 of the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994
A. INTRODUCTION
1. Paragraph 7.2 of the Decision on Implementation – Related Issues and Concerns
(WT/MIN(01)/W/10) states as follows:
7.2 Recognizes that, while Article 15 of the Agreement on the Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994 is a mandatoryprovision, the modalities for its application would benefit from clarification.
Accordingly, the Committee on Anti-Dumping Practices is instructed, through its
working group on Implementation, to examine this issue and to draw up appropriate
recommendations within twelve months on how to operationalize this provision.
2. Article 15 the Anti-dumping Agreement provides:
“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 theapplication 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.”
3. The first sentence of this provision concerns the appropriateness of the “application of anti-
dumping measures” in view of the fact that the targeted country is a developing country Member.
The issue here is that, once dumping and injury have been determined, when deciding whether anti-
dumping measure should be imposed, developed countries should take into account the developing
country status of the targeted country.  The key words here are “special regard” and “whenG/ADP/AHG/W/128
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considering”.  “Regard” is understood to mean “a point to be attended to”, “taken into consideration”.
“Regard” is qualified by “special” which is defined as “out of ordinary”, “specific, not general”, “for a
particular purpose”.  Therefore “special regard” would mean specifically taking into account the
special situation of developing country members.  Such a consideration should not be general in
character but should be for a particular purpose.  The words “when considering” indicates thatobligation arises when considering the application of anti-dumping measures.  The importing country
authorities then have to determine whether these findin gs, as well as any other elements relative to the
case, would militate in favour of imposition of anti-dumping measure or not.  The first sentence of
Article 15 imposes an obligation on the investigating authorities that the special situation of
developing countries should be an element to be taken into consideration when making that
evaluation.
4. The second sentence of Article 15 read in the context of the first sentence suggests a possible
way in which “the special regard” could be given by developed country members to developing
country members when considering the application of anti-dumping measures.  This sentence imposes
an obligation on the investigating authorities which is mandatory in character as
“Possibilities…….. shall  be explored…..”  This obligation arises before anti-dumping duties are
applied.  The nature of underlying obligation is to explore constructive remedies.  The term “explore”
is defined as “examine, scrutinize, search out” implying thereby a rigorous searching out of
constructive remedies.  The term “constructive remedies” might be understood to mean helpful means
of counteracting the effect of injurious dumping.  Thus constructive remedies would imply definitive
action, which not only counteracts the effects of injurious dumping but is also beneficial to theinterests of developing countries.  Furthermore the constructive remedies shall be explored with a
willingness to reach a positive outcome.  For this obligation to be fulfilled special and differential
treatment would be required to be provided to imports from developing country members while
considering the application of anti-dumping measures.
5. Another important element in the second sentence is “where they affect the essential interests
of developing country members”.  From the text of these words it is not clear whether it is a self
judging provision or whether the essential interests should be determined on the basis of objective
standards.  An examination of whether imposition of anti-dumping duties would affect the essential
interests of developing countries needs an enquiry which is specifically economic in character rather
than being legal in orientation.  It needs to be recognized that cooperation by exporters from
developing countries during the course of an anti-dumping investigation results in financial costswhich these concerns are ill positioned to bear.  It could be argued that given the limited share of
developing countries in international trade and the fact that application of an anti-dumping duty would
result in reduction, if not complete stoppage, of the exports from developing countries to the member
applying the measure, such measures should be presumed to adversely affect the essential interests of
the developing countries.
B. SUGGESTIONS FOR OPERATIONALIZING ARTICLE 15
6. Although Article 15 of the Anti-dumping Agreement is mandatory in character the extent to
which various member countries have fulfilled the underlying obligations is not clear.  A need is
therefore felt for operationalizing these obligations.  Following are some of the ways in which thespecial and differential treatment could be given to the imports from developing countries while
considering the application of anti-dumping measures:
(a) Acceptance of price undertakings offered by exporters from developing countries;
(b) Application of lesser duty rule;(c) Raised de minimis  margins and enhanced negligible volumes.G/ADP/AHG/W/128
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Acceptance of Price Undertakings offered by Exporters from Developing Countries
7. Article 8.1 of the Anti-dumping Agreement provides that proceedings may be suspended or
terminated without 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 thearea in question at dumped prices so that the injuri ous effect of dumping is eliminated.  As part of
operationalizing Article 15 it is proposed that during anti-dumping investigation, the investigating
authorities in developed countries should favourably consider accepting price undertakings offered by
exporters from developing countries.  In fact acceptance of price undertakings offered by exporters
from developing countries should become the norm rather than remaining an exception.  Furthermore,
as desired under Article 8.1 the price increases should be less than the margin of dumping if such
increases would be adequate to remove injury to the domestic industry.
8. However, Article 8.3 specifies that undertakings offered need not be accepted if the
authorities consider their acceptance to be impractical.  As part of operationalizing Article 15 it is
proposed that investigating authorities in developed countries  should be required to give detailed
reasons if undertakings offered by developing country exporters are not accepted on grounds of beingimpractical or any other consideration.
Application of Lesser Duty Rule
9. According to Article 9.1 of the Anti-dumping Agreement it is desirable that the anti dumping
duty be less than the margin of dumping if such less er duty would be adequate to remove the injury to
the domestic industry.  As a constructive remedy, it is proposed that lesser duty rule should
mandatorily be followed in respect of imports from developing countries.  To effectuate this
suggesting the investigating authorities should calculate not only the dumping margin but also the
injury margin.  This would legitimately constitute a constructive remedy as the injurious effects ofdumping could be counteracted while at the same time a special and differential treatment would be
provided to imports developing countries.
Raised De Minimis  Margins and Enhanced Negligible Volumes
10. A de minimis  dumping margin of 2 per cent of export price has been prescribed up to which
no anti-dumping duty can be imposed.  Similarly the de minimis  volume up to which no anti dumping
measures can be imposed is 3 per cent subject to a cumulation level of 7 per cent.  The de minimis
margin and negligible volume levels are the same for exports from developing as well as developed
countries.  As part of special provision under Article 15 for developing country members, it is
proposed that de minimis  dumping margin of 2 per cent should be raised to 5 per cent for exports from
developing countries.  Similarly the negligible volume below which anti-dumping measures onimports from developing countries will not be made applicable should be increased from 3 per cent to
7 per cent from individual countries without there being any requirement of cumulation.
11. The above proposal regarding raised de-minimis margins and enhanced levels of negligible
volumes could be justified as giving special regard to the special situation of developing countrymembers.  At the same time this suggestion could also constitute a constructive remedy under second
sentence of Article 15 as injurious dumping beyond the levels of enhanced de minimis  dumping
margins and raised negligible volumes would be countered.
12. Alternatively it could be considered that imports from developing countries up to a specified
percentage of total domestic consumption of the like product in the importing developed country
member would lead to negligible injury and no anti-dumping measures made applicable.  While
certain developed country members have specified 1 per cent as the level of imports in relation to theG/ADP/AHG/W/128
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total consumption as constituting negligible injury, the specific percentage of imports could be arrived
at after further discussions with the other member countries.
C. MONITORING COMPLIANCE WITH ARTICLE 15
13. As has been indicated earlier the extent to which obligations under Article 15 have been
complied with by investigating authorities is not cl ear.  It is therefore considered that the Public
Notice required to be given under Article 12.2.1, 12.2.2 and 12.2.3 should give in sufficient detail the
manner in which the obligations under Article 15 have been complied with.  In case undertakings
were offered but were not accepted by the investigating authority, the Public Notice should set forth
the reasons for rejection of the undertaking.
14. Article 16.4 of the Anti-dumping Agreement requires members to submit on a semi-annual
basis reports of any anti-dumping actions taken within the preceding six months.  The semi-annual
reports shall be submitted on an agreed standard form.  To ensure compliance with obligations under
Article 15 of the Agreement it is proposed that the standard form of the semi-annual report should
include a column wherein members should clearly indicate how special regard was given and what
constructive remedies were explored as required under Article 15.
D. CONCLUSION
15. India has made certain proposal in this paper for operationalizing obligations under Article 15
based on which detailed guidelines can be worked out for giving effect to the provisions of this
article.  During the discussions Members may also deliberate upon whether there are other ways of
operationalizing Article 15.
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