WORLD TRADE
ORGANIZATIONG/ADP/Q1/PER/25
G/SCM/Q1/PER/25
2 December 2003
(03-6381)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal:  Spanish
NOTIFICATION OF LAWS AND REGULATIONS UNDER ARTICLE 18.5
AND ARTICLE 32.6 OF THE AGREEMENTS
Responses to the Questions Posed by the UNITED STATES1
Regarding the Notification of PERU2
The following communication, dated 24 November 2003, has been received from the
Permanent Mission of Peru.
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General questions
1.  When imports of products from more than one country are simultaneously subject to
investigation, does Peru engage in cumulative assessment, as permitted by Article 3.3 of the
Anti-dumping Agreement (ADA) and Article 15.3 of the Agreement on Subsidies and
Countervailing Measures (ASCM)?
Reply
Peru has not yet carried out cumulative assessment, but may do so in future.
2. The notified Supreme Decree No. 006-2003-PC M ("the Decree") provides little guidance
concerning the public notices that are required by Article 12 of the Anti-Dumping Agreement.Does Peru intend to uniformly apply Article 12 of the ADA and Article 22 of the ASCM with
regard to public notices and the explanation of determinations?
Reply
Article 33 of Supreme Decree No. 006-2003-PCM provides for the publication in the Official
Journal El Peruano  of resolutions initiating an investigation and those applying, changing or
abolishing anti-dumping or countervailing duties.  With regard to the content of resolutions, Peru
applies the provisions of Article 12 of the Anti-dumping Agreement and Article 22 of the Agreement
on Subsidies and Countervailing Measures.
                                                     
1 G/ADP/Q1/PER/20-G/SCM/Q1/PER/20.
2 G/ADP/N/1/PER/2-G/SCM/N/1/PER/2 (3 March 2003).G/ADP/Q1/PER/25
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3. What rules exist concerning verifications in  Peru’s recently notified Regulations when
considered in relation to those outlined in Article 6.7 and detailed in Annex I of the ADA?  If no
specific rules regarding verifications exist, does this indicate that Peru intends to uniformly
apply Article 6.7 and Annex I of the ADA?
Reply
Peru applies the guidelines establishe d under Article 6.7 and Annex 1 of the ADA.
4. Article 21 provides that dumping and subsidie s investigations "shall be initiated upon a
written application addressed to the Commission  by an enterprise or group of enterprises
accounting for at least 25 per cent of the total domestic production of the product concerned".
Article 21 reiterates portions of the industry support provisions of Article 5.4 of the ADA and
Article 11. 4 of the ASCM, but claims that it is "without prejudice" to these provisions.  Does
Peru intend to determine whether those producers expressing support for the petition make up
more than 50 per cent of total production of the like product of those expressing support for oropposition to the petition, as provided for in Article 5.4 of the ADA, and Article 11.4 of the
ASCM?  Why does Article 21 reiterate the 25 per cent test, but not the 50 percent test of the
cited provisions?
Reply
Peru does not analyse support for or oppositi on to a petition since, under the provisions of
Article 5.5 of the ADA and Article 11.5 of the ASCM,  publicity on petitions is avoided before the
start of investigations.
5. Article 26 provides that the Peruvian Government may grant extensions to parties
completing questionnaires, "provided adequate justification is given".   What constitutes an
adequate justification in Peruvian law, for purposes of Article 26?
Reply
There is no legal definition of "adequate justification".  Requests for extensions are therefore
assessed on a case-by-case basis, according to particular circumstances.  Extensions are normally
granted to all foreign enterprises, up to the maximum limit allowed under the ADA (60 days).
6. (a) The first paragraph of Article 28 of the Decree indicates that within six months
from publication of the decision to initiate an investigation, the period forsubmission of evidence or arguments by the parties will conclude.  What, if any,
opportunities do parties have for submission of evidence or arguments during
this period other than in the applic ation (for the applicant) or in the
questionnaire responses and accompanying rebuttals referenced in Article 26 of
the Decree (for others)?
Reply
Within six months of the initiation of an inve stigation, all the parties may submit any form of
evidence or arguments.  They may also request a hearing to present their arguments if this is deemednecessary.G/ADP/Q1/PER/25
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(b) Does the Dumping and Subsidies Commission take into account the evidence and
arguments submitted by the parties opposing the application before making any
decision to impose provisional measures pursuant to Article 49 of the Decree?
Reply
In assessing whether to apply provisional measures, the Commission takes into account all
information and evidence in the files to date, incl uding those provided by the defendants or third
parties not participating in the investigation.
7. Article 29, regarding the powers of the Commission to request information, says that
"[t]he Commission may require the data and information it deems relevant to allow it to fulfill
its task directly from the parties cited in the complaint, customs agents, surveillance, transport
and other companies and public or private sector  bodies, which must supply this information
within the time-limits set, on pain of liabilit y."  Does the Peruvian government intend to impose
liability on one party for the omissions of anot her, even if unrelated?  For example, will an
exporter suffer "pain of liability" if an unr elated transport company fails to provide
information?  Does this provision mean that customs agents, surveillance, transport and other
companies and public or private sector bodies are considered interested parties in the
proceeding?
Reply
Liability for the failure to provide information falls directly on the party from whom it was
requested.
Customs agents, and surveillance or transport companies are not considered interested parties,
but they may provide information for the purposes of the investigation.
8. (a) Article 29 refers to fines that may be imposed on parties to administrative
proceedings "who obstruct the taking of evidence, use the proceedings for
unlawful or fraudulent purposes or in any way hinder or obstruct the normal
conduct of the investigation procedure ...".  How is this consistent withArticle 6.8 and Annex II of the Anti-Dumping Agreement, which provide only
for determinations to be made on the basis of facts available, in the event that a
party refuses to cooperate with the in vestigation, and which allow interested
parties the option of not coopera ting in such an investigation?
Reply
Any party which does not wish to cooperate in the investigation is entitled to refrain from
doing so, and is not subject to a penalty.  Fines are imposed on parties participating actively and
voluntarily in the proceedings if they provide false or inaccurate information, withhold relevantinformation (such as a change of name by the exporter in order to avoid the payment of anti-dumping
duties) or obstruct the normal conduct of the investigation.G/ADP/Q1/PER/25
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(b) In response to a question on a predecessor provision to Article 29, Peru stated
that it imposes fines rather than drawin g adverse inferences if a party fails to
submit information as required.3  Article 29, however, provides that the
Commission "shall take a decision based on the information available," if thereis no response to a request for information.  How will this provision apply if a
party partially responds to a request for information?  How will this provision
apply if a party responds fully to a request for information, but the Commission
determines that the response is inaccura te?  Does this provision represent a
change in Peru’s policy with respect to adverse assumptions?
Reply
If any party to the investigation fails to provide information which might assist in the
investigation, or provides partial information, the Commission makes its decision on the basis of the
best information available.
If the information is not precise, the Commission will first ask the party providing it for a
clarification, and then assess the case and the explanation given.
If a party responds inaccurately to the effect that some substantive item of information is
found to be false, or is intended to mislead the authority, the Commission may consider the impositionof a fine on the party concerned, once wilful misconduct and bad faith have been established.
(c) Does the Code of Civil Procedure define the terms "obstruction", "hindering",
"normal conduct", and "unlawful or fraudulent purposes"?
Reply
No.
(d) Will a party which responds only partially to a request for information, or which
responds with information determined to be inaccurate, or which the
Commission otherwise determines to have  been less than fully cooperative be
considered in any way to have hindered or obstructed the normal conduct of the
investigation?
Reply
Only if inaccurate or false information is given intentionally in order to mislead the authority
in its determinations.
(e) Have fines ever been levied under Article 29 or any predecessor provision?  If
not, does this mean that no party in any Peruvian investigation has ever failed to
provide any piece of requested information?  If there ever has been such a
failure, please describe any discretion the Commission may have to decline to
impose fines on some parties, notwithstanding the apparently mandatory
language of Article 29?
                                                     
3 See G/ADP/Q1/PER/15-G/SCM/Q1/PER/15 (23 May 2001).G/ADP/Q1/PER/25
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Reply
Fines have been levied on two occasions.  In one case, an importer participating in the
investigation tried to obstruct the process and challe nged the authority by suggesting that if it needed
information, it should seek it from the source the importer had indicated.  The importer was urged on
several occasions to change his approach but he refused.  This was considered legal misconduct .
In the second case, a fine was levied on an exporter whose enterprise was included among
those which were supposed to pay provisional duties,  but, in order to avoid paying them, the company
changed its name a few days after the duties were imposed.  The authorities were not informed of this
fact and the enterprise continued using its original name in all its correspondence throughout theinvestigation.  When the authority made the discovery, it asked the exporter to explain what had
transpired. The explanation given by the exporter acknowledged that the authority had not been
informed of the change.
The provisions of Article 29 are not binding, but optional.One case in which fines would not be imposed is where a party which is asked to provide
information does not comply and such non-compliance affects only that party (for example, a
domestic producer that fails to prove that it has suffered injury).  The party would therefore not incur
a fine since non-compliance on the part of the enterprise will lead to a decision taken against  it.
(f) Please describe in full the methodology the Commission will use to calculate the
amount of the fine.  Will all interested parties and relevant Members have the
opportunity to comment on the methodology used to establish the amount of the
fine?
Reply
The amount of the fine is calculated according to the seriousness of the infringement,
economic benefit and recidivism.  The party concerned may appeal that decision before the
Competition Protection Division Court for the Defence of Competition and the Protection of
Intellectual Property.
(g) Please describe the potential consequences for refusal to pay a fine imposed
under Article 29.  What enforcement mechanisms are available to the
Commission?  Is there a scenario in wh ich the imported merchandise could be
subject to seizure?
Reply
INDECOPI has a department dealing with enforcement that is empowered to institute
proceedings for the collection of  fines.  Any property owned by the debtor may be affected.
(h) Given that Peru has made its Code of Civil Procedure an important means of
enforcing its anti-dumping and countervailing duty proceedings, when does Peru
intend to notify the Code to the WTO Committee on Anti-dumping Practices
and the Committee on Subsidies and Countervailing Measures?G/ADP/Q1/PER/25
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Reply
It is important to note that the provisions of the Code of Civil Procedure apply on a
supplementary basis and only in exceptional cases not regulated by Supreme Decree No. 006-2003-PCM, the Anti-dumping Agreement or the Agreement on Subsidies and Countervailing Measures.
The relevant provisions of the Code bein g described in Supreme Decree No. 006-2003-PCM,
notification is not necessary.
9. Article 36 of the Decree refers to the join t responsibility of the interested party and
translator in accordance with Article 11.1.2 of Law No. 27444 – Law on General Administrative
Procedure.  Has Peru notified this provision to the Committee?  Please indicate what type of"joint responsibility" is possible under this provision.
Reply
Law No. 27444 simply provides that instead of a requirement for official translations, simple
translations may be accepted, provided that the translator is identified and signs the translation.
Joint responsibility is possible in the event that a translator produces an incomplete or
inadequate translation which intentionally provides false or misleading information to the
Commission.
10. In circumstances where Peruvian author ities retain experts in an antidumping
investigation, how will Peru en sure that these experts maintain  the confidentiality of the data
examined, as provided for in Article 6.5 of the ADA?
Reply
Experts are under the same obligation as civil servants to sign an agreement on
confidentiality.  Violation of that commitment bears administrative or penal consequences, or both,
depending on the case.
11. Does the Peruvian government intend to i ssue implementing rules for interim reviews
and expiration reviews?  If so, when?
Reply
No.
12. Pursuant to Article 46 of the Decree, provisional or definitive anti-dumping and
countervailing duties "constitute fines and not any form of taxation."  In response to a question
about an identical predecessor provision to Article 46, Peru stated that the "effects or
consequences of this distinction for importers are irrelevant".4  Does this distinction have an
effect or consequence for any person or entity other than importers?  If so, please describe this
effect or consequence.
Reply
It has no effect for any of the parties.
                                                     
4 G/ADP/Q1/PER/11-G/SCM/Q1/PER/11 (25 September 1998).G/ADP/Q1/PER/25
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13. Article 60 provides that a definitive duty review may be initiated on the basis of a timely
and "duly substantiated request" for such a review by or on behalf of the domestic industry.  By
what legal standard will Peruvian authorities determine whether a request is "duly
substantiated"?
Reply
The authorities determine whether the request is  duly substantiated by analysing the evidence
presented in each case.
14. Articles 62 and 65 provide for appeals.  Wh at court considers appeals filed under these
provisions?  Please clarify whether anti-dumping or countervailing duties will be refunded if an
antidumping or countervailing duty decision is reversed on appeal.  If so, will interest be paid
on the amount being refunded?
Reply
The Competition Protection Division of the Court for the Defence of Competition and the
Protection of Intellectual Property is the second instance for the consideration of appeals.
If a decision on duties is reversed, a refund of the amount plus accrued interest is granted.
SCM-specific questions
15. Regarding the classification of subsidies under Article 12 of the Decree, Peru notes that
"subsidies contingent, in law or in fact ... up on export" shall be prohibited.  The Peruvian
provision parallels Article 3.1(a) of the ASCM, but Peruvian Article 12 does not contain any
language equivalent to footnote 4 from the ASCM text.  Absent of such language, by what
criteria will the Peruvian government determine that a subsidy is contingent-in-fact upon
export?
Reply
The provisions set out in footnote 4 of the Agreement on Subsidies apply.
16. Article 14 provides that "[t]he value of th e loan subsidies shall be determined on the
basis of the financial method most appropriat e in the Commission’s view, for the purpose of
establishing the real impact of the subsidy on the goods".  Has Peru established rules fordetermining what methods may be appropriate?  Further, what is meant by the "real impact"
of the subsidy on the goods?
Reply
There are no regulations on the methods for calculating the subsidy.  The real impact of the
subsidy on goods relates to the benefit received.
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