RESTRICTED
WORLD TRADE G/ADP/AHG/R/2
7July1997
ORGANIZATION(97-2820)
Committee onAnti-Dumping Practices
AdHocGroup onImplementation
SUMMARY REPORT OFTHE MEETING OFTHE
ADHOC GROUP ONIMPLEMENTATION
OFTHE COMMITTEE ONANTI-DUMPING PRACTICES
29-30 APRIL 1997
Note bytheSecretariat
1. TheAdHocGroup onImplementation ("the Group") helditsfirstsubstantive discussions
concerning thetopics referred toitbytheCommittee onAnti-Dumping Practices ("theCommittee").1
Theproposed agenda forthemeeting, which hadbeencirculated indocument WTO/AIR/565, dated
11April 1997, wasadopted.
2. TheChairman (Mr. K.Sukhum, Thailand) reminded theGroup thatthediscussions would
follow theorder inwhich papers were received, assetforth intheagenda.
3. Thefirsttopic ontheagenda wastheperiod ofdatacollection foradumping investigation.
Itwassuggested that,asageneral rule,theperiod fordumping determinations should benolessthan
sixmonths, andtheperiod forinjury determinations should bethreeyears, andthattheperiods should
include themost recent dataavailable inbothcases. Inaddition, some factors totakeintoaccount
inestablishing thespecific period andanyadditional oralternative period inbothcases wereproposed.
Members addressed thespecific suggestions, aswellasmore general issues related tothistopic. It
wasgenerally agreed thatwhile guidelines fortheperiods ofdumping andinjury investigations would
beuseful, aswould guidelines forfactors tobeconsidered inestablishing different oralternative periods
ofinvestigation, itwasimportant toallow investigating authorities toretain discretion andflexibility,
inorder tobeabletotakeaccount ofparticular factors relating tothecompanies, products, andcountries
atissueinagiveninvestigation,toensurethattheinvestigationperiodswereappropriatefortheparticular
case. Itwasgenerally agreed thatitwasmost important forinvestigating authorities toexplain or
justify theirselection ofaparticular investigation period, especially ifitdiffered from thatprovided
forinanyguidelines, fromthatselected inother cases orfromthatprovided forbydomestic legislation
orregulation. Some Members suggested thatlinking periods ofinvestigation tothedateofinitiation
might beuseful inensuring thatthemostrecent dataweresought inaninvestigation, butitwasalso
suggested thattheexistence ofdatainacompany 'saccounting records, linked toitsaccounting periods,
should alsobetaken intoaccount, tobalance thedifficulty ofproviding information against theneed
forthemost recent data. Members were generally oftheview thatguidelines andexplanations of
departures from guidelines would improve thetransparency oftheinvestigative process.
4. Following thediscussion, theGroup decided toasktheSecretariat toprepare adraft
recommendation onthismatter, based ontheGroup 'sdiscussions. Thatdraftrecommendation will
becirculated toMembers separately.
1Thelistoftopics referred totheAdHocGroup wascirculated toMembers indocument
G/ADP/W/401.G/ADP/AHG/R/2
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5. TheGroup thenturned tothenexttopic ontheagenda, notification ofthegovernment ofthe
exporting member pursuant toArticle 5.5.Asapossible guideline, itwassuggested thatanotification
tothegovernment oftheexporting Member bemade seven daysbefore initiating. Members addressed
theneedforflexibility inanyguidelines toallow fordifferent domestic procedures. Some Members
emphasized thattheimportant element wasthefactofnotification, rather thanthespecific timing of
notification. There wasalsodiscussion ofthepractical mechanics ofnotifying thegovernment ofthe
exporting Member -whoshould benotified, where, andhow. Itwassuggested thatnotification "before"
initiation raised practical questions asitsuggested thatadecision toinitiate wasmade andnotified
before theinitiation actually tookplace. Ontheother hand, thedecision toinitiate wasnotknown
untilitwasmade, anditappeared tosome Members thattherewasnoobligation tonotify the"possible"
initiation ofaninvestigation before theactual initiation. Itwasquestioned whether thiswasinfact
theintention ofArticle 5.5.Some Members raised thequestion ofhowmuch time"before" initiation
would besufficient -would notification onehourbefore initiation satisfy therequirement? Some
Members suggested thatArticle 5.5actually related tonotification ofthereceipt ofanapplication,
andthatthiscould ofcourse bedone"before" initiation, which would enable theexporting Member
totakeanyactions itdeemed appropriate, butdidnotprejudge theinitiation determination. However,
some Members pointed outthattheirdomestic procedures didnotinclude adetermination thatan
application was"properly documented", andthusthenotification ofthereceipt ofaproperly documented
application would notbepossible. Itwaspointed outthatArticle 5.2oftheAgreement specified what
constituted aproperly documented application, andthatwhether ornotaspecific determination was
made, investigating authorities hadtohavesome means ofjudging whether anapplication wasinfact
properly documented before proceeding tomake adetermination whether toinitiate. Ontheother
hand, itwaspointed outthataMember might choose nottoinitiate based onaproperly documented
application, inwhich casethenotification ofthereceipt oftheapplication seemed oflittleuseorvalue.
Itwaspointed outthatArticle 12.1contained aseparate requirement ofpublic notice oftheinitiation
ofaninvestigation, sointheviewofsome Members, theArticle 5.5notification requirement hadto
refertosomething additional anddifferent. Some Members suggested thatthereappeared tobeadegree
ofcontradiction between theobligation toavoid publicizing theapplication forinitiation ofan
investigation inthefirstsentence ofArticle 5.5,andtherequirement tonotify theexporting Member
inthesecond sentence ofArticle 5.5.
6. Following thediscussion, thedelegation ofNorway agreed toprepare apaper summarizing
thepoints made inthediscussion, including those relating toconsideration ofwhatmustbenotified,
when, towhom, andhow, inorder tosatisfy theobligation under Article 5.5. Itwasfeltthatsuch
apaper could serve asthebasis forfurther discussion atasubsequent meeting. Thatdocument will
becirculated toMembers separately.
7. TheGroup thenturned tothequestion oftheprovision ofessential factsunder consideration
before making afinaldetermination under Article 6.9andthedisclosure offindings. Thediscussion
initially focused ontwoissues withrespect tothisrequirement under theAgreement. Thefirstwas
thesubstantive question ofwhatconstituted theessential factssubject totherequired disclosure, and
thesecond wasthepractical question ofhowsuchdisclosure wastobemade. Several Members
described theirownpractices concerning thisrequirement, which included various elements suchas
ameeting withparties, preparation ofawritten report, differing timeperiods applicable tothedate
ofthedisclosure andtheperiod forcomments, anddifferent contents ofthedisclosure. Itwasrecognized
thattheparticular investigative anddecision-making process indifferent Members 'systems ledto
differences inhowthisobligation wasmet. Itwassuggested thatthepurpose ofdisclosure wasto
enable interested parties todefend theirinterests. Theobligation toallow sufficient timeforparties
toaninvestigation tocomment ontheinformation disclosed suggested forsome Members thatatime
limitforthedisclosure, suchas30dayspriortothefinaldetermination, might beanappropriate subject
forguidelines. Ontheonehand, itwassuggested thatdisclosure should takeplace earlier rather than
laterintheproceeding, while ontheother hand, itwasconsidered important thatdisclosure takeplaceG/ADP/AHG/R/2
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afterallinvestigative efforts were concluded andtheinvestigating authorities were ready tomake a
determination.
8. Some Members suggested thatitwasunclear whether disclosure before adetermination was
made could bemeaningful, since which factswere"essential" wasnotknown untilthedecision was
taken. Onotherhand, some Members suggested thatthedisclosure ofessential factscould notconstitute
aprejudgment oftheinvestigating authorities 'decision, which would bemade afterthedisclosure.
There wasdiscussion ofwhether thedisclosure obligation wassatisfied byadisclosure exclusively
offacts, orwhether some disclosure ofanalysis orreasoning wasalsoneeded. Some Members pointed
outthatdisclosure ofreasoning oranalysis suggested thatthedecision hadbeenmade atthetimethe
disclosure wasmade, which wasnot,intheirview, acorrect implementation oftherequirement. Some
Members suggested thatguidelines onwhatshould bedisclosed would beuseful, butthatguidelines
onhowthedisclosure should takeplace would bemore difficult, given thedifferences innational
practices. Another question raised wastowhom disclosure wasmade, thatis,whether allparties were
entitled todisclosure, orwhether disclosure could belimited toparties participating intheinvestigation,
orcooperating withtheinvestigating authorities.
9. Itwaspointed outthatthereappeared tobetworequirements underlying theGroup 'sdiscussion
ofthistopic. Onewastherequirement under Article 6.9,which provides thattheauthorities:
"shall, before afinaldetermination ismade, inform allinterested parties oftheessential
facts under consideration which form thebasis forthedecision whether toapply
definitive measures. Suchdisclosure should takeplace insufficient timefortheparties
todefend theirinterests".
Theother wastherequirement togive, inthepublic notice ofapreliminary orfinaldetermination,
themainreasons leading tothedetermination, andinthepubic notice ofanaffirmative determination
concluding orsuspending aninvestigation, therequirement toprovide
"allrelevant information onthematters offactandlawandreasons which haveled
totheimposition offinalmeasures ortheacceptance ofapriceundertaking ...aswell
asthereasons fortheacceptance orrejection ofrelevant arguments orclaims made
bytheexporters andimporters".
Itwassuggested thatthese weretwoseparate requirements, andthattheArticle 6.9requirement was
lessextensive thantherequirement forexplanations inthepublic notices issued under Article 12.On
theother hand, some Members wereoftheviewthat,since Members wereinanyevent required under
Article 6.4toprovide "timely opportunities forallinterested parties toseeallinformation thatisrelevant
tothepresentation oftheircases ...andthatisusedbytheauthorities inananti-dumping investigation",
theArticle 6.9requirement mustentail something more thanmerely disclosing factsobtained inthe
investigation, andmustinclude some indication ofthereasoning ormethodology oftheinvestigating
authority inorder toallow parties adequately todefend theirinterests. Some Members suggested that
thepublic notice ofthepreliminary determination might besufficient tomeetthedisclosure obligation
ofArticle 6.9,butothers pointed outthatnewandimportant factsmight beobtained inthefinal
investigation, which would havetobedisclosed.
10. TheGroup didnotreach anyconclusions andagreed torevert tothistopic atalaterdate.
Itwasagreed thatMembers would beasked tosubmit atimeline ofwhen various events occurred in
theirrespective investigative processes, including atleastthefollowing elements: application, initiation,
preliminary determination, hearing(s), written submission(s) fromparties, disclosure ofessential facts,
finaldeterminations, andpublic notices ofdeterminations. Itwasagreed thatthisinformation might
assist infurther discussion ofthistopic atasubsequent meeting oftheGroup.G/ADP/AHG/R/2
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11. TheGroup thenturned tothequestion ofpublic notices under Article 12.There wasdiscussion
whether thepaper submitted byIndia, which addressed elaboration ordisclosure ofthedetermination
ofstanding inthepublic notice ofinitiation wasproperly within thescope ofthetopic referred tothe
Group, butthere wasnodiscussion ofthesubstance oftheissue. TheChairman pointed outthatthe
agenda fortheGroup 'sdiscussions hadbeensetbytheCommittee, andthatanychanges oradditions
tothatagenda would havetocome fromtheCommittee. Members wereofcourse freetoraisequestions
intheCommittee concerning thescope oftopics tobediscussed bytheGroup, butintheinterim, other
Members were freetosubmit papers based ontheirunderstanding ofthescope ofaparticular topic
referred totheGroup. However, ifaMember wasunwilling todiscuss aparticular matter, itwas
clear thatanydiscussion could notyield positive results, andtherefore inview ofthelimited time
available fortheGroup 'sdiscussions, theGroup would goontoconsider thenexttopic.
12. TheGroup thenturned tothequestion oftreatment ofconfidential information. Thediscussion
addressed suchmatters aswhat information canorshould betreated asconfidential andhowthe
requirementfornon-confidentialsummariescanbesatisfiedwithrespecttodifferenttypesofinformation.
Itwaspointed outthatArticle 6.5oftheAgreement appeared toprovide thatsome types ofinformation
were"confidentialbynature",whichmightsuggestthatsuchinformationshouldbetreatedasconfidential
inallcases, yetjustification forconfidential treatment ofsuchinformation isnonetheless required.
Itwassuggested thatinformation thatisconfidential bynature might betreated ashaving apresumption
ofconfidentiality, which could berebutted. Other Members suggested thatevenifinformation isby
nature confidential, confidential treatment ofsuchinformation inaparticular investigation should be
justified. However, thenature ofthejustification might varywiththeparticular typeofinformation
inquestion.
13. TheGroup didnotreach anyconclusions andagreed torevert tothistopic atalaterdate.
Itwasagreed thatMembers would beasked tosubmit alistoftypes ofinformation theyconsider to
beconfidential bynature, which would becompiled andcirculated bytheSecretariat. Itwasagreed
thatthisinformation might assist infurther discussion ofthistopicatasubsequent meeting oftheGroup.
14. TheGroup thenturned tothequestion ofthecontents ofpreliminary affirmative determinations.
Among suggestions made byMembers werethatpreliminary affirmative determinations should contain
thefollowing elements: (1)explanation ofwhyprovisional measures arenecessary toprevent injury
being caused during theinvestigation, (2)discussion ofthefactors assessed inadetermination ofthreat
ofmaterial injury, (3)explanation ofadetermination oncumulation, including themargin ofdumping
andvolume ofimports foreachcountry atissue, (4)discussion ofother factors causing injury. On
theother hand, itwasquestioned whether thesubstance ofapreliminary determination under
Article 7.1(ii) oftheAgreement wasrequired tobesetforthinthepublic notice ofthatdetermination.
15. TheGroup didnotreach anyconclusions andagreed torevert tothistopic atalaterdate.
Thedelegation oftheECagreed torevise itsoriginal paper onthistopic, inparticular incorporating
thepoints made byNewZealand concerning theobligation todetermine thatprovisional measures
were needed toprevent injury during theinvestigation.
16. TheGroup thenturned tothequestion oftheprovision forhearings inArticle 6.2ofthe
Agreement. There wasgeneral discussion ofdifferent Members 'experience withformal hearings during
thecourse ofaninvestigation andinformal oradhocmeetings between parties andinvestigative staff.
Some doubts were expressed concerning theusefulness ofhearings inlightoftheconfidentiality of
much information. Other Members noted positive experiences withparties having theopportunity
toconfront oneanother, andsuggested thatthediscussion ofeachothers 'experience wasuseful.
However, theGroup generally agreed thatmoresubstantive papers anddiscussion werenecessary before
anyguidelines could beconsidered onthistopic.G/ADP/AHG/R/2
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17. TheGroup thenturned tothequestion ofwhat might constitute "special circumstances" in
Article 5.6oftheAgreement. Among thepoints made byMembers wastoemphasize theexceptional
nature ofinvestigations initiated without awritten application byoronbehalf ofthedomestic industry,
toavoid suchinvestigations becoming common aswellasthepossibility thatsuchinitiations might
beusedtoavoid some requirement oftheAgreement, suchasthestanding requirement. Anumber
ofMembers suggested thatspecial circumstances should notinclude situations where theAgreement
contained aprovision onacertain matter, suchasthecaseoffragmented industries, addressed innote
13oftheAgreement, oranindustry 'sdifficulty inobtaining information tosubmit withanapplication,
addressed intheconcept ofinformation "reasonably available". Itwasalsopointed outthatinitiation
based onarequest byagovernmental body might raiseparticular concerns where onebody ofthe
government wastheinvestigating anddecision-making authority, andanother bodyofthegovernment
was,effectively, aparty totheinvestigation.
18. TheGroup generally agreed thatwhile itmight bedifficult toreach anyconsensus onwhat
circumstances were "special", itmight bemore readily possible toagree ona"negative list"of
circumstances which werenot"special". Thedelegation ofNewZealand agreed torefine itsoriginal
paper onthistopic, including preparation ofsuchanegative list.TheGroup agreed torevert tothis
topic atalaterdate.
19. TheGroup thenturned tothequestion ofdutyassessments under Article 9oftheAgreement.
Thefocus under thistopicwasdiscussion ofapplication ofthelesser dutyrulebyMembers. Several
Members discussed ingeneral howtheyapplied thelesser dutyrule. Itwasgenerally agreed thatmore
information onthespecific details ofMember practices inthisareawasneeded before anydiscussions
about guidelines could goforward. Some Members emphasized thatapplication ofthelesser dutyrule
wasnotarequirement oftheAgreement, andtherefore while discussions onthistopicmight beuseful,
anyguidelines thatmight bedeveloped would onlyberelevant ifandtotheextent aMember applied
thelesser dutyrule.
20. TheGroup agreed thatMembers whoapply thelesser dutyrulewould beasked tosubmit
adescription ofhowtherulewasapplied inpractice bytheirinvestigating authorities. Thisinformation
would beuseful inanyfurther discussions ofthistopic, towhich theGroup agreed torevert atalater
date.
21. TheGroup agreed thatitsnextmeeting would bescheduled inconjunction withtheOctober
regular meeting oftheCommittee. Members recognized thatthisschedule, which would alsohave
theInformal Group onAnti-Circumvention meeting inconjunction withtheCommittee, resulting in
afullweek ofanti-dumping related meetings, would beasignificant burden, especially forthose
delegations which sentthesame individuals toanti-dumping related meetings andmeetings ofthe
Committees onSubsidies andCountervailing Measures andonSafeguards, which would bemeeting
intheprevious orfollowing week. Nonetheless, mostMembers wereoftheviewthatsuchaschedule
would bepreferable tohaving anadditional meeting oftheGroup before theregular meeting ofthe
Committee, despite theincreased burden onallconcerned andthelesser opportunity forsubstantive
discussions, atleastforthepresent.
22. TheGroup agreed thatpapers andother submissions fortheGroup 'snextmeeting should be
transmitted totheSecretariat nolaterthan8September 1997.