RESTRICTED
WORLD TRADE G/ADP/AHG/R/3
19March 1998
ORGANIZATION(98-1112)
Committee onAnti-Dumping Practices
AdHocGroup onImplementation
SUMMARY REPORT OFTHE MEETING OFTHE
ADHOC GROUP ONIMPLEMENTATION
OFTHE COMMITTEE ONANTI-DUMPING PRACTICES
27-28 OCTOBER 1997
Note bytheSecretariat
1. TheAdHocGroup onImplementation ("the Group") helditssecond substantive discussions
concerning thetopics referred toitbytheCommittee onAnti-Dumping Practices ("theCommittee").1
Theproposed agenda forthemeeting, which hadbeencirculated indocument WTO/AIR/705, dated
16October 1997, wasadopted.
2. TheChairman (Mr. K.Sukhum, Thailand) reminded theGroup thatthediscussions would
follow theorder inwhich papers werereceived, assetforthintheagenda. Members whohadsubmitted
papers onatopic would beasked tobriefly present theirviews, andthefloor would thenbeopened
forgeneral discussion.
3. Thefirsttopicontheagendawastopicnumber4,Article5.6"SpecialCircumstances".Members
discussed theproposed draft"negative list"ofsituations thatwould notconstitute special circumstances
under Article 5.6.Several Members summarized fortheGroup thesituations inwhich theyhadself-
initiated investigations inthepast. Anumber ofMembers expressed reluctance toagree toa"negative
list"ofcircumstances thatwould notbeconsidered special, asthismight beconsidered aninterpretation
oftheAgreement, which wasbeyond theGroup 'sauthority. Moreover, these Members noted that
itwasdifficult todetermine intheabstract what circumstances might be"special" inthecontext of
aparticular industry ataparticular time. Some Members commented thatmerely because footnote 13
oftheAgreement addressed thesubject ofdetermining support foranapplication inthecaseof
fragmented industries didnotnecessarily mean thatself-initiation inacaseinvolving afragmented
industry wasorshould beprecluded. Thequestion wasraised whether, inacaseofself-initiation,
Article 5.4oftheAgreement applied. Some Members suggested thatself-initiation wasanalternative
toreceipt ofanapplication, andthusthatsupport byasufficient proportion ofthedomestic industry
would stillhavetobedetermined inaccordance withArticle 5.4. Other Members considered that
Article 5.4wasspecifically linked tothequestion ofdetermining support foranapplication, andhad
norelevance inacaseofself-initiation where noapplication existed, andthattherewasthusnoobligation
todetermine industry support insuchacase. Some Members pointed outthatevenifindustry "support"
foranapplication wasnotneeded inaself-initiated investigation, investigating authorities would still
beobligated tolookatthedomestic industry "asawhole" toassess injury, andthatthere would be
nopoint inconducting aninvestigation ifthere wasinsufficient interest onthepartoftheindustry.
Some Members alsoraised thequestion ofwhether thegovernment oftheimporting Member could
"assist" adomestic industry inpreparing anapplication thatwould besufficient, rather thanself-initiate
aninvestigation based oninformation notsupplied byanapplicant. Some Members noted inthiscontext
1Thelistoftopics referred totheAdHocGroup wascirculated toMembers indocument G/ADP/W/401.G/ADP/AHG/R/3
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thattherequirements ofArticles 5.2and5.3concerning sufficient evidence tojustify initiation applied
inthecontext ofself-initiation aswellasinitiation based onanapplication.
4. Following thediscussion, theGroup agreed toaskMembers tosubmit additional papers on
thistopic, inlightofthediscussions, including thequestions raised regarding thelink,ifany,between
Articles 5.4and5.6oftheAgreement andtheroleofthegovernment in"assisting" industries in
preparing applications.
5. TheGroup thenturned tothenexttopicontheagenda, topicnumber 6,Article 6.2"Hearings".
Several Members described, infactual terms, theirownpractice regarding theconduct ofpublic hearings
inanti-dumping investigations. Numerous questions regarding specific practices wereposed byother
Members. These included suchmatters aswhen requests forhearings were made, whether public
hearings wereobligatory oronlyheldonrequest, whether examination and/or cross-examination of
speakers athearings wasallowed, whether hearings wereopentothegeneral public oronlytointerested
parties, whether there were opportunities for"confidential" hearings, andwhat thetimeframe for
submission ofwritten statements, ifany,following hearings was.
6. Following thediscussion, theGroup agreed thatMembers would berequested tosubmit
information describing theirpractice regarding hearings, including when hearings arerequested, when
theyareheld, whattypes ofhearings areheld, etc.
7. TheGroup thenturned totopic number 7,Article 6.9"Essential Facts". Several Members
described theirpractices incomplying withtherequirements ofArticle 6.9todisclose "essential facts".
Members raised questions about howthe"essential" factscanbedetermined inadvance ofthefinal
decision, atwhatpoint intimemustthedisclosure takeplace, whatcould bedoneintheunusual, but
possible, situation ofalatewitness ornewly discovered factatalatestage intheproceedings, etc.
Other issues raised werethequestion ofdealing withconfidential information, which might beessential,
andtheform ofthedisclosure, i.e.orally, inareport, intheprovision ofaccess totherecord ofthe
investigation orsome other mechanism. Some Members questioned whether itwaspossible toknow,
before adetermination wasactually made, the"essential facts" onwhich thatdetermination would be
based -thatis,afactmight turnouttobecritical intheultimate decision, without itsbeing readily
identifiable as"essential" prior tothedecision being made. Several Members expressed concern that
determining what facts were "essential" before making adetermination might prejudge thefinal
determination. Some Members suggested thataminimum listofinformation tobedisclosed might
beauseful approach fortheGroup totake. Itwasalsopointed outthatthe"essential facts" forthe
determinationofdumping,andforthedeterminationofinjuryandcausallink,mightbeentirelydifferent,
andthedisclosure requirement might consequently needtobeapplied differently. Itwasalsosuggested
thatsinceArticle 6.4requires access toallinformation, disclosure of"essential facts" under Article 6.9
mustrefertosomething different, thatis,theinformation tobeusedasthebasis ofafinaldecision,
which maynotbealltheinformation obtained intheinvestigation.
8. TheGroup agreed thatMembers would berequested tosubmit theirviews onwhat isthe
minimum information thattheyconsider "essential" andmustbedisclosed. Thismight eventually serve
asthebasis ofanillustrative listofinformation tobedisclosed as"essential facts".
9. TheGroup thenturned totopic 8,Article 12.2"Public Notices". Members described their
different systems forissuing public notice ofdeterminations. Some Members issue adetailed public
noticeintheirofficialgovernmentgazette,whileothersissueamorecursorypublicnotice,withreference
toamore detailed report which ispublicly available. Some Members expressed theviewthatthepublic
notice should bemore thorough thansome ofthenotices published inMembers 'official government
gazettes. Members alsoenquired about practice indealing withpreliminary negative determinations.
Some Members donotpublish notices ofsuchdeterminations, which insome cases didnotendtheG/ADP/AHG/R/3
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investigation, oraresubject toreversal onreview. Some Members expressed concern withthenotion
thatapreliminary negative determination doesnotendtheinvestigation insome Members 'practice.
Other Members issuepublic notices ofsuchdeterminations intheirofficial government gazette. Such
notices include information ontheevaluation oftheissues ofdumping, injury, andcausation. Members
were asked howtheyresolved theissue ofterminations and/or public notice when companies were
found nottobedumping during thecourse ofaninvestigation, buttheinvestigation continued forother
companies. Itwascommented thattheinformation provided inconnection withnegative determinations
wasinsome Members 'practice lessdetailed thanforaffirmative determinations.
10. TheGroup didnotreach anyconclusions onthistopic, andagreed torevert toitatalater
date.
11. TheGroup thenturned totopicnumber 9,"Provisional Measures". Some Members questioned
whether theelements thatweresuggested forguidelines related toprovisional measures, which was
thetopic under discussion, ortopreliminary determinations. Itwasnoted thatifthere isnodecision
toapply provisional measures, apreliminary determination isnotrequired. However, ifprovisional
measures areimposed, there must beadetermination thatsuchmeasures arenecessary toprevent
injurious dumping. Thus, some reference tothatelement seemed needed.
12. TheGroup didnotreach anyconclusions onthistopic, andagreed torevert toitatalater
date. Itwassuggested thattheEuropean Communities 'paper onthistopicmight beredrafted toclearly
include therequirement setoutinArticle 7.1(iii).
13. TheGroup thenturned totopic 2,theperiod ofdatacollection. Itwasgenerally agreed that
thedraftrecommendation wasprobably premature, asitraised many questions. Members described
thevariousperiodswhichmightberelevantintheirindividualinvestigativeprocesses,noting,forinstance
thattheperiod inwhich costofproduction issues wereconsidered might differ fromtheperiod within
whichsalestobeinvestigatedmustoccur.SomeMembersnotedthattheremightbeadifferencebetween
theperiod forwhich datawascollected, andtheperiod considered intheanalysis underlying a
determination. Members noted thatdifferent industry circumstances, suchascyclical industries or
agriculturalproducts,mightentaildifferentconsiderationsindeterminingappropriateperiods.Members
alsoenquired atwhatpointintheinvestigative process theperiod ofinvestigation wastobedetermined.
Some Members noted thattheirquestionnaires asked fordataforthemaximum period thatmight be
considered, butthattheactual period analyzed might ultimately beshorter, based ontheinformation
obtained during thecourse oftheinvestigation. Some Members alsoenquired about theperiod of
investigationforreviewinvestigations,includingwhetherthesameperiodswereapplicableasfororiginal
investigations, orifnot,whatdifferent periods wereconsidered appropriate. Questions wereraised
about whether anyMembers hadfaced asituation where achange intheperiod ofinvestigation was
deemed appropriate sometime afterinitiation. Itwascommented thatsuchachange might require
newquestionnaires, which would beproblematic inlightofthetimelimits oninvestigations.
14. TheGroup agreed thatMembers would berequested tosubmit theircomments onthenumerous
questions raised during thediscussion ofthistopic, including thedifference between the"period of
datacollection" fortheinvestigation, andforwhatwascalled the"profitability analysis" inCanada 's
paper (G/ADP/AHG/W/30), whathappens iftheoriginal period chosen isfound tobeinadequate or
inappropriate, periods ofinvestigation incases ofprocurement/tenders, howtheperiod isdetermined
inreviewinvestigationsandrefundsituations,andhowtheperiodisdefinedincasesinvolvingfluctuating
exchange rates. Inaddition, theGroup agreed thatMembers would berequested tosubmit papers
describing theirownpractice indetermining period ofinvestigation.
15. TheGroup thenturned totopic number 1,treatment ofconfidential information. Members
discussed theinformation thathadbeenprovided concerning types ofinformation Members deemedG/ADP/AHG/R/3
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tobeconfidential. Some Members, which hadasystem fordisclosure ofconfidential information under
some formofprotective order system, described theirpractice inthatregard. Other Members noted
thecomplexity ofasystem forproviding access toconfidential information, andindicated thatthey
hadnosuchsystem. Some Members questioned howtoreconcile strict adherence toconfidentiality
withdisclosure under some form ofprotective order system. Certain Members commented thatthe
sizeoftheireconomies, withmany oneproducer industries, restricted thepossibility ofdisclosure.
Moreover,differenttypesofinvestigativeprocess,suchasinquisitorialministerialinvestigations,resulted
indifferent considerations onwhether todisclose anyconfidential information inanyway. Thus, it
wascommented thatdisclosure systems might bemore useful inadversarial orjudicial typesystems
ofinvestigation. OneMember commented thatitwasrareforaparticular piece ofconfidential
information tobepivotal toacase, thusthefailure todisclose didnotusually restrict parties ability
todefend theirinterests. InthisMembers 'view, thekeywasinthenon-confidential summaries. In
thatregard, itwasquestioned howMembers 'investigating authorities determined theadequacy orlack
ofadequacy ofnon-confidential summaries, andwhether inpractice Members didreject requests for
confidential treatment because ofinadequacy ofthenon-confidential summary. Moreover, oneMember
enquiredaboutotherMembers'experienceinrejectingrequestsforconfidentialtreatmentofinformation,
including thefrequency ofsuchrejections.
16. TheGroup agreed toasktheSecretariat tocompile alistoftypes ofinformation members
hadidentified as"confidential bynature" inresponse totherequest forinformation inWTO/AIR/643.
Members whohadnotyetdonesowould berequested tosubmit papers identifying information they
consider tobe"confidential bynature", aswellasindicating whether theyhaveasystem ofdisclosing
confidential information inanti-dumping investigations, andifso,howthatsystem operates.
17. TheGroup thenturned totopicnumber 10,dutyassessments under Article 9.Several Members
described theirdutyassessment systems. Some Members described howtheyapply thelesser duty
ruleintheirinvestigations. Numerous specific questions were raised inthisconnection, including
howMembers collected theinformation forsuchdeterminations, howthecalculation oranalysis of
"margin ofinjury" wascarried out,aswellasconcerning specific details ofindividual Member 's
calculation ofcosts andprices. Members alsoenquired astothefrequency withwhich alesser duty
wasinfactapplied bythose Members whohadsuchasystem. Members commented onconsideration
ofinternational markets orinternational prices forthepurpose ofevaluating lesser dutyamounts. One
Member enquired whether therewasadifference inpractice between considerations of"public interest"
andapplication ofthelesser dutyrule. Several Members commented ontheir methodologies in
calculating a"non-injurious price" foruseinapplication oflesser duties. OneMember enquired whether
anyMembers hadexperience inapplying thelesser dutyruleinthecontext ofprovisional measures.
Itwascommented thatthelesser dutyrule,ifapplied, should beapplied systematically inallcases,
orelsethedanger ofdiscriminatory orarbitrary application might arise. OneMember enquired whether,
iftheinjury margin wasfound tobehigher thanthedumping margin, thishadanyimplications for
theinjury determination, andwassuchafinding communicated totheparties. AMember noted that
theanalysis underlying application ofalesser dutyrequired afinding ofinjury, andthenaquantification
ofthatinjury, andcommented thatafinding ofaninjury margin greater thanthedumping margin might
imply thatother factors were causing injury, andperhaps notthedumping. Itwasnoted thatanti-
dumping measures wereintended toremedy injurious dumping, andnotinjury caused byother factors.
However, thatother factors werealsocausing injury didnotnecessarily imply thatdumping wasnot.
OneMemberenquiredwhy,sinceitwasnotobligatoryundertheAgreement,someMembershadchosen
toapply thelesser dutyrule,thusgiving risetoasituation ofnon-reciprocity which might cause some
disadvantage. There wasdiscussion ofthedifferences between prospective andretrospective systems
ofdutyassessment. Inparticular, questions wereraised about theinterplay between judicial review
ofdeterminations andrefunds insystems ofprospective dutyassessment. AtleastoneMember
commented onalackofadministrative capacity tohandle asystem ofrefunds oradministrative reviews.G/ADP/AHG/R/3
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18. TheGroup agreed torequest thattheSecretariat compile information submitted bymembers
onhowtheyapply thelesser dutyruleinresponse totherequest forinformation inWTO/AIR/643.
Members whohadnotyetdonesowould berequested tosubmit information describing howtheyapply
thelesser dutyrule. TheGroup alsoagreed thatMembers would berequested tosubmit information
explainingtheirrefundproceduresandhowthejudicialreviewprocessintersectswithrefundprocedures,
asabasisforfurther discussions. Ingeneral, theGroup agreed thatfactual information fromMembers
onhowtheyhandle dutyassessments, whether theirsystem iscalled "retrospective" or"prospective",
would beuseful.
19. TheGroup thenturned totopic number 5,notification oftheGovernment oftheexporting
Member pursuant toArticle 5.5.Several Members described theirspecific practices fornotifying the
government oftheexporting country. Anumber ofMembers expressed agreement withtheconclusions
inparagraph 10ofNorway 'spaper onthistopic. Questions were raised about thepracticalities of
notification -i.e.whether tonotify diplomatic representatives, orother Members 'investigating
authorities, orwhether theGroup might consider theestablishment ofalistofcontact points forsuch
notifications. Some Members commented thatintheirpractice thetimebetween receipt ofanapplication
andthedecision oninitiation wasveryshort. Moreover, anotification totheGovernment ofthe
exporting Member could itself have aneffect ontrade. Thequestion wasalsoposed astothe
consequences ifnoinvestigation wasinitiated. Insuchacase, should afurther notification bemade?
Itwasnotcleartosome Members whattherationale forthis"early warning" was.AtleastoneMember
commented thatthesituation wasdifferent inthesubsidies area,where therewasanobligation toconsult
underArticle13oftheSCMAgreement.SomeMemberssuggestedthattheArticle6.1.3andArticle5.5
notification obligations could bemetatonetime. Others suggested thatthere seemed tobeaclear
succession intimeofthenotifications required under Articles 5.5,6.1.3, and12.1. There wasalso
aquestion raised whether notification should bemade totheGovernment oftheexporting country,
ortotheGovernment ofthecountry oforigin, ifdifferent, incases where theexporting country was
notthecountry whose companies would beinvestigated. Questions were alsoraised astohowto
reconcile theobligation toavoid publicizing anapplication before adecision toinitiate, andnotification
oftheexporting government before proceeding toinitiate. Itwassuggested thattheexporting Member
could beasked torespect theconfidentiality oftheapplication. Inthisregard, itwassuggested that
theobligation toavoid publicizing theapplication applied onlytotheMember receiving theapplication,
andnottoanyother Member orperson, butthisviewwasdisputed bysome other Members. Questions
werealsoraised astohowMembers determined whether anapplication was"properly documented".
Didthisinvolve satisfying therequirements ofArticle 5.2?Insome systems, ifanapplication complied
withtherequirements ofArticle 5.2,initiation wasrequired. Thus, thenotification ofreceipt ofa
"properlydocumented"applicationwasequivalenttoanotificationofdecisiontoinitiate.SomeMembers
suggested thatArticle 5.2governed whether anapplication was"properly documented", butthat
Article 5.3hadtobeconsidered inaddition toArticle 5.2indeciding whether toinitiate, asdid
Article 5.4.Several Members commented thatitwasperhaps better tonotify laterwhen itwasmore
certain thataninvestigation would beinitiated, butthisviewwasdisputed. Forsome Members, the
notion ofan"early warning" wasconsidered veryimportant, particularly forthose Members where
companies looked totheirgovernment toassist them inresponding inanti-dumping investigations.
There seemed tobeadeveloping consensus thatthepublic notice ofinitiation under Article 12.1was
notsufficient tosatisfy therequirement ofArticle 5.5,particularly inlightofthefactthatthere was
aspecific recipient oftheArticle 5.5notification, thegovernment oftheexporting Member, asopposed
tothe"public" notice under Article 12.1.
20. TheGroup agreed thatMembers would berequested toprovide information onhowthey
implement article 5.5.Inaddition, Members would beasked tosubmit written views onparagraph 10
ofNorway 'spaper (G/ADP/AHG/W/33), "Preliminary Conclusions".G/ADP/AHG/R/3
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21. TheGroup thenturned briefly totopic number, Article 6.10"Sampling". Itwasgenerally
agreed thatanumber ofinteresting questions hadbeenposed, butthatfurther information wasnecessary
before anysubstantive discussions could becarried out.
22. TheGroupagreedthatMemberswouldberequestedtorespondtothequestionsposedbyCanada
initspaper (G/ADP/AHG/W/30).
23. TheGroup agreed thatitsnextmeeting would bescheduled inconjunction withtheApril regular
meeting oftheCommittee, onMonday andTuesday, 27-28April 1998.
24. TheGroup agreed thatpapers andother submissions fortheGroup 'snextmeeting should be
transmitted totheSecretariat nolaterthan14March 1998.
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