WORLD TRADE
ORGANIZATIONG/ADP/Q1/PER/20
G/SCM/Q1/PER/20
6 October 2003
(03-5245)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal:  English
NOTIFICATIONS OF LAWS AND REGULATIONS UNDER
ARTICLE 18.5 AND ARTICLE 32.6 OF THE AGREEMENTS
Questions posed by the UNITED STATES
Regarding the Notification of PERU1
The following communication, 2 October 2003, has been received from the Permanent
Mission of the United States.
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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 analysis, as permitted by Article 3.3 of the
Antidumping Agreement (ADA) and Article 15.3 of the Agreement on Subsidies and Countervailing
Measures (ASCM)?
2. The notified Supreme Decree No. 006-2003-PCM ( “the Decree”) provides little guidance
concerning the public notices that are required by Article 12 of the Anti-Dumping Agreement.  DoesPeru 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?
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 nospecific rules regarding verifications exist, does th is indicate that Peru intends to uniformly apply
Article 6.7 and Annex I of the ADA?
4. Article 21 provides that dumping and subsidies investigations “shall be initiated upon a
written application addressed to the Commission by an enterprise or group of enterprises accountingfor at least 25 per cent of the total domestic production of the product concerned”.  Article 21
reiterates portions of the industry support prov isions 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 or opposition to the petition, asprovided for in Article 5.4 of the ADA, and Articl e 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?
                                                     
1 G/ADP/N/1/PER/2-G/SCM/N/1/PER/2 (3 March 2003)G/ADP/Q1/PER/20
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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?
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 for submission of evidence
or arguments by the parties will conclude.  What, if any opportunities do parties have for
submission of evidence and arguments during this period other than in the application (for the
applicant) or in the questionnaire responses and accompanying rebuttals referenced in
Article 26 of the Decree (for others)?
(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?
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 liability.”  Does the Peruvian government intend to impose liability on one
party for the omissions of another, even if unrelated?  For example, will an exporter suffer “pain ofliability ” if an unrelated 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?
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 with Article 6.8 and Annex II of the Anti-Dumping Agreement, which provide only
for determinations to be made on the basis of fa cts available, in the event that a party refuses
to cooperate with the investigation, and which allow interested parties the option of not
cooperating in such an investigation?
(b) In response to a question on a predecessor provision to Article 29, Peru stated that it imposes
fines rather than drawing adverse inferences if a party fails to submit information as required.
2
Article 29, however, provides that the Commission “shall take a decision based on the
information available,” if there is no response to a request for information.  How will this
provision apply if a party partially responds to a request for information? How will thisprovision apply if a party responds fully to a request for information, but the Commission
determines that the response is inaccurate? Does this provision represent a change in Peru’s
policy with respect to adverse assumptions?
(c) Does the Code of Civil Procedure define the terms “obstruction,” “hindering,” “normal
conduct,” and “unlawful or fraudulent purposes?”
(d) Will a party which only partially responds 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 orobstructed the normal conduct of the investigation?
                                                     
2 See, G/ADP/Q1/PER/15-G/SCM/Q1/PER/15 (23 May 2001)G/ADP/Q1/PER/20
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(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 impos e fines on some parties, notwithstanding the
apparently mandatory language of Article 29?
(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?
(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 which
the imported merchandise could be subject to seizure?
(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 Codeto the WTO AD and SCM Committees?
9. Article 36 of the Decree refers to the joint 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.
10. In circumstances where Peruvian authorities retain experts in an antidumping investigation,
how will Peru ensure that these experts maintain the confidentiality of the data examined, as provided
for in Article 6.5 of the ADA?
11. Does the Peruvian government intend to i ssue implementing rules for interim reviews and
expiration reviews?  If so, when?
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 thisdistinction for importers are irrelevant".
3  Does this distinction have an effect or consequence for any
person or entity other than importers?  If so, please describe this effect of consequence.
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?”
14. Articles 62 and 65 provide for appeals.  What 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 theamount being refunded?
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...upon export” shall be prohibited.  The Peruvian provision
parallels Article 3.1(a) of the ASCM, but Peruvian Article 12 does not contain any language
                                                     
3 G/ADP/Q1/PER/11-G/SCM/Q1/PER/11 (25 September 1998)G/ADP/Q1/PER/20
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equivalent to footnote 4 from the ASCM text.  Ab sent such language, by what criteria will the
Peruvian government determine that a subsidy is contingent-in-fact upon export?
16. Article 14 provides that “[t]he value of the loan subsidies shall be determined on the basis of
the financial method most appropriate in the Commission’s view, for the purpose of establishing the
real impact of the subsidy on the goods”.  Has Peru established rules for determining what methods
may be appropriate?  Further, what is meant by the “real impact” of the subsidy on the goods?
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