./.WORLD TRADE
ORGANIZATIONTN/RL/W/123
16 June 2003
(03-3183)
Negotiating Group on Rules Original:  English
COMMENTS BY AUSTRALIA ON THE PROPOSAL BY VARIOUS
MEMBERS ON SUNSET REVIEWS (DOCUMENT TN/RL/W/76)
The following communication, dated 13 June 2003, has been received from the Permanent
Mission of Australia.
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The following is based on the preliminary comments made at the May session of the Rules
Negotiating Group on the proposal presented by various Members on sunset reviews.  Australia would
like to express its appreciation for the paper (doc ument TN/RL/W/76) on sunset reviews, which is an
important and complex issue that requires careful consideration.
The problem which was identified in paper TN/RL/W/6, and expanded upon in TN/RL/W/76,
is that in practice “an expansive use of the exception (sunset reviews to continue the order) turns the
continuation of the order into a de facto practice”.  The paper proposes the following solution,
consisting of two elements:
• The first element is for anti-dumping measures to remain in force for as long as is necessary to
counteract injurious dumping and to have the five-year sunset absolutely imposed.
• The second element of the proposal is to prevent a new initiation no sooner than one year (or 6
months in exceptional circumstances) following the termination of an anti-dumping measure (that
is, it proposes the establishment of a “grace period”).
The illustrative example provided in the paper describes a situation where duties continue
even though the company had no plans of exporting to the country imposing measures because the
domestic industry has asserted the company would re start injurious dumping if the dumping duty was
terminated.
Australia acknowledges that the continuation of measures, in circumstances where the
exporter has no intention of exporting again, seems superfluous and that it makes the concept of a
sunset review meaningless where measures continue forever as a matter of routine.  However, in theabove example, it would not be the exporter who was affected by the measures continuing, as they
have no plans to export to the country where measures apply.
Australia also acknowledges that the acceptance of mere assertions, as set out in the example,
is an undesirable practice.  This would apply equally to the assertions of all interested parties.
The automatic and absolute termination of measures after five years would address the issue
of concern identified in the example.  However, Australia would like to express concern that new
problems could arise from this proposed solution.TN/RL/W/123
Page 2
What if the exporting company did export at dumped and injurious levels after the measures
were removed?  The domestic industry would be unprotected for the minimum 6 months required to
elapse before they could reapply for measures and in addition would be unable to be protected until a
minimum of 60 days into the investigation when preliminary measures can be applied.  Small- or
medium-sized domestic industries, which the measures were protecting, could well be seriouslyinjured in this time.
Australia would also be interested in the scope of “exceptional circumstances” and if it could
be used in the above circumstances.
Australia does not necessarily consider that it is abuse of the sunset review system where
measures have existed for long periods.  Such a situation may not indicate abuses but may merelyshow, amongst other possibilities, that there may ha ve been little change in circumstances and that
dumping could still cause or be causing material injury.
Australia also doubts that exporters are often disadvantaged in the market during the period of
an anti-dumping measure as suggested by the proponents in their paper TN/RL/W/76.  Rather, theanti-dumping measures mean that the exporter can continue to compete but only at a level non-
injurious to the domestic industry.
In Australia’s view, the second element of the proposal introduces or distorts the balance of
rights and obligations under the WTO Anti-Dumping Agreement (the right to remedy injuriousdumping).
Australia agrees that the “likelihood” test is inherently predictive and cannot be conducted on
the basis of facts only.  Australia also notes that it is possible for this test to be abused.  However,
Australia doubts that the only way to manage the difficulty of the likelihood test is to terminate allmeasures after five years without exception.  Pa per TN/RL/W83 (Proposal on Reviews) contemplates
a ‘harmonised indicative list’ that may also be useful to consider for sunset reviews.
Australia considers that the likelihood test must also apply to the recurrence of dumping.Australia suggests that the likelihood test may not be the only factor influencing the rate of
continuations.  Procedural issues, such as whether authorities can initiate reviews and the timeframefor reviews, may also be an influence.
As other Members have noted, it would be wort hwhile to clarify the extent to which the
provisions of the Agreement which apply to initial in vestigations also apply to reviews, and, if those
provisions were found not to apply to any extent, to consider providing rules.
In particular, Australia notes the problems encountered as a result of a lack of clarity provided
by ADA Article 11.3.  Australia considers that the DRAMS case 
1 has provided some useful analysis
in this regard which could provide guidance on this issue.
Improvements outlining the investigation process in more detail, including criteria to be used
in determining “likelihood” may address the lack of clarity and predictability in Article 11.3 without
undermining the fundamental principles of the Agreement while ensuring that the test of injurious
dumping is honoured and preserved.
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1 United States – Anti-Dumping Duty on Dynamic Random Access Memory Semiconductors (DRAMS)
of one Megabit or above from Korea , Report of the Panel, WT/DS99/R, adopted 19 March 1999.  See in
particular footnote 494.