./.RESTRICTEDWORLD TRADE
ORGANIZATIONWT/GC/W/205
14 June 1999
(99-2368)
General Council Original:  English
PREPARATIONS FOR THE 1999 MINISTERIAL CONFERENCE
Agreement on Implementation of Article VI of GATT 1994
Proposal under Paragraph 9(a)(i) of the Geneva Ministerial Declaration
Communication from Malaysia on behalf of ASEAN Members
The following communication, dated 7 June 1999, has been received from the Permanent
Mission of Malaysia.
_______________
Background
1. The Agreement on the Implementation of Article VI of the GATT 1994 as negotiated during
the Uruguay Round has been in effect for four years.  However, the Anti-Dumping Agreement
continues to contain weaknesses that, unless rectified, provide opportunities for abuse.
2. Among the weaknesses of the Agreement is the question of determination of dumping as
stipulated in Article 2:4 of the Anti-Dumping Agreement.  Article 2:4 of the Agreement requires that
the comparison between export prices and the normal value should be fair.  The provision requires
that the dumping margins be established on a weighted-average basis or a transaction basis.  It doeshowever provide for exceptions whereby comparisons are permitted between individual export prices
and weighted-average normal prices.  Past experience clearly shows that the exceptions have virtually
become the rule with the practice resulting in arti ficially high dumping margins, which would lead to
abuse of the Agreement.
3. Another important weakness of the Agreement is the Standard of Review contained in
Article 17 of the Anti-Dumping Agreement.  Article 17 appears to unduly circumscribe the role of the
WTO dispute panels to a mere determination of "whether the authorities' establishment of the facts
was proper and whether their evaluation of those fact was unbiased and objective."  This is in
complete contrast to the powers extended to panels under Article 11 of the Dispute Settlement
Understanding (DSU).  The Anti-Dumping Agreement is an integral part of the WTO and there is,therefore, no logical reason why a different and more restrictive standard of review must pertain to
adjudication of WTO disputes in the anti-dumping area.  The scope for protectionist discretion is
clearly obvious.
4. There have been cases where export products of interest to developing countries have been
subjected to repeated anti-dumping investigations in respect of the same products.  These repeatedinvestigations have the impact of harassing trade and worse have tended to be abused for protectionist
purposes.WT/GC/W/205
Page 2
5. Article 5:8 of the Anti-Dumping Agreement does not stipulate the time-frame within which a
determination has to be made on whether the volume of dumped imports are negligible or otherwise
as provided for under the thresholds stipulated in Article 5:8.  This has resulted in arbitrary and
unilateral decisions as to what is the appropriate time-frame to be used.
Proposal
6. Article 2:4 of the Anti-Dumping Agreement should be reconsidered so as to avoid the
frequent usage of the exceptions recognized therein.
7. Article 17 should be reconsidered so as to ensure that the same standards of review are
applied as in disputes relating to other WTO Agreements, under the Dispute Settlement
Understanding.
8. There is a need to reconsider Article 5:3 of  the Anti-Dumping Agreement to limit the scope
for repeated anti-dumping investigations on the same product.
9. Article 5:8 of the Anti-Dumping Agreement needs to be clarified with regard to the
time-frame to be used in determining as to whether the volume of dumped imports are negligible
under the thresholds stipulated in the Article.
__________