RESTRICTEDWORLD TRADE
ORGANIZATIONG/SG/Q1/PHL/2
18 March 2002
(02-1394)
Committee on Safeguards Original:  English
NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLE 12.6 OF THE AGREEMENT
Replies to Questions Posed by the EUROPEAN COMMUNITIES1
Regarding the Notification of the PHILIPPINES2
The following communication, dated 5 March 2002, has been received from the Permanent
Mission of the Philippines.
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Questions relating to the "Republic Act No. 8800"
1. Section 4(g) lists "interested parties" but does not mention governments of exporting
countries.  Can the Philippines confirm that also governments of supplying countries are
considered "interested parties" who can partic ipate at every stage of the investigation?
Reply
Section 4(g) of RA 8800 states that "interested parties shall include domestic producers,
consumers, importers, and exporters of the products under consideration".  This enumeration does not
purport to be exclusive and may include other parties that can be classified as "interested parties".Similarly, the Agreement on Safeguards itself does not categorically define the scope of the term
"interested parties".  Article 3 of the said Agreement makes mention of "importers, exporters and
other interested parties" that could present evidence and their views.  In this context, "Governments of
supplying countries" are not expressly classified as "interested parties", but nonetheless may be
considered as "Members having a substantial interest as exporters of the product concerned" whichare entitled to consultations for purposes of paragraph 3 of Article 12 of the Agreement on
Safeguards.
2. Section 4(d) defines "critical circumstances" as referring to "prima facie evidence"
while Article 6 of the Agreement on Safeguards requires "clear evidence".  Please explain the
standard for evidence established in Section 4(d) and how it relates to the standard in Article 6
of the Agreement on Safeguards.
Reply
Prima facie  evidence, according to Philippine jurisprudence, is evidence which, if
unexplained or uncontroverted, is sufficient to sustain the proposition it supports or to establish the
                                                     
1 G/SCM/Q1/PHL/2
2 G/SG/N/1/PHL/2G/SG/Q1/PHL/2
Page 2
facts as presented.  Philippine judicial practice shows that prima facie  evidence indicates a higher
degree or quantum of evidence than "probable cause".
Philippine law and jurisprudence does not provide for the concept of "clear evidence", and
thus the term prima facie  was used.  However, prima facie  evidence may be considered as
approximately equivalent - under Philippine practice - to "clear evidence".  A higher degree ofevidence, i.e. "conclusive evidence" or evidence "which the law does not allow to be contradicted"
does not appear warranted given the purpose for which it is to be employed, that of "preliminary
determinations" under Article 6 of the Agreement on Safeguards.
3. Section 5 (Conditions for the Application of General Safeguard Measures) does not
contain a reference to imports entering "under su ch conditions" as to cause serious injury, a
condition which is set forth in Article 2.1 of the Agreement on Safeguards.  Please explain how
the Philippines will ensure that this requirement under Article 2.1 is observed.
Reply
The lack of the phrase "under such conditions" in Section 5 of RA 8800 vis-à-vis  Article 2 of
the Agreement on Safeguards does not pose any practical difference, since the same intent and tenor
may be read into the said provision of RA 8800.  Under Section 5, "(T)he Secretary shall apply a
general safeguard measure upon a positive final determination of the Commission that a product isbeing imported into the country in increased quantities, whether absolute or relative to the domestic
production, as to be a substantial cause of serious injury or threat thereof to the domestic industry".
4. Section 5 foresees a public interest determination only for investigations concerning
non-agricultural products.
(a) Please explain why no such test is required for agricultural products.
Reply
The Agreement on Safeguards does not prohibit a Member from imposing additional
conditions upon itself when applying safeguard measures.  Hence, with regard to non-agricultural
products, Section 5 of RA 8800 which imposes upon the Secretary the additional burden of making a"public interest determination", i.e. whether or not "the application of such safeguard measures will be
in the public interest", is not an inappropriate condition.
In this case, the decision of the Philippine legislature to impose such an additional
requirement upon the executive branch of the gove rnment is purely within the discretion of the
Philippines.
(b) How will it be ensured that, as required by Article 3.1 of the Agreement on
Safeguards, views on "whether or not the application of a safeguard measure
would be in the public interest" can be expressed by interested parties?
Reply
"Interested parties" are given the opportunity, under the regular procedure provided under RA
8800, to prove or disprove the fact that the imposition of the safeguard measure will result in
"political or economic crisis" and "the extent to which such imposition will cause a shortage of the
product under consideration in the domestic market".G/SG/Q1/PHL/2
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5. Section 8 (Provisional Measures) appears to allow for the imposition of a quantitative
restriction as a provisional measure concerning impo rts of agricultural products.  Please explain
how this can be reconciled with the obligation in  Article 6 of the Agreement on Safeguards, that
a provisional measure may only take the form of a tariff increase.
Reply
Section 3 of RA 8800 states that the provisions thereof "apply to products being imported into
the country irrespective of source" i.e. whether the country of source is a Member or not.  Section 8 of
RA 8800 is intended to apply, at the least, to countries of source which are not Members.
The Philippines duly recognizes the explicit language provided under Article 8 of the
Agreement on Safeguards and fully intends to comply with Members' obligations provided under the
Agreement.
6. Section 15 (Limitations on Actions) does not contain provisions on quota allocation
among supplying countries.  Please explain how it will be ensured that, in the case of imposition
of a quantitative restriction, the provisions of Article 5.2 of the Agreement on Safeguards on
quota allocation will be observed.
Reply
In the absence of a specific provision in RA 8800, the provisions of Article 5.2 are deemed
applicable, given that the Agreement on Safeguards is a valid and effective source of law and
obligation under the Philippine legal system.
7. Section 17 (Notice of General Safeguard Measure) paragraph (b) requires notification to
the Committee on Safeguards "when adopting a provisional measure".
Please confirm that this provision requires notification of the provisional measures prior
to their application in accordance with Article 12.4 of the Agreement on Safeguards.
Reply
Section 17 of RA 8800 should be read in conjunction with Article 12.4 of the Agreement on
Safeguards.  In this context, notification should be made before the application of a provisional
safeguard measure.
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