RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/AHG/W/127
31 January 2002
(02-0482)
Committee on Anti-Dumping Practices
Ad Hoc Group on ImplementationOriginal:  English
IMPLEMENTATION-RELATED ISSUES REFERRED TO THE
COMMITTEE ON ANTI-DUMPING PRACTICES AND ITS
WORKING GROUP ON IMPLEMENTATION
Paper Submitted by Brazil
The following communication, dated 29 January 2002, has been received from the Permanent
Mission of Brazil.
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In this paper, Brazil will comment on two impl ementation-related issues referred to the
Committee on Anti-Dumping Practices by Ministers in Doha:  (a) Special and Differential Treatmentfor Developing Countries (Article 15 of the Anti-Dumping Agreement), and (b) discussion of the
time-frame to be used in determining a negligible volume of dumped imports (Article 5.8 of the Anti-
Dumping Agreement).  These two issues correspond to, respectively, paragraphs 7.2 and 7.3 of the
"Decision on Implementation-Related Issues and Concerns", issued at the Fourth WTO Ministerial.
1. Special and Differential Treatment for Developing Country Members (Art. 15)
Article 15 of the Anti-Dumping Agreement establishes that:
It is recognized that special regard must be given by developed country Members to
the special situation of developing country Members when considering the
application of anti-dumping measures under this Agreement.  Possibilities ofconstructive remedies provided for by this Agreement shall be explored before
applying anti-dumping duties where they would affect the essential interests of
developing country Members.
The first sentence of Article 15 sets an obligation for the developed countries to give "special
regard" to the situation of developing country Members throughout the anti-dumping investigation.This obligation must be reflected in the actions of the investigating authority.
The second sentence of Article 15 establishes an objective obligation for the developed
countries:   to explore the constructive remedies provided for by the Agreement, prior to the
application of the duties.
With a view to operationalizing such a provision, one could elaborate on the idea of
"constructive remedies", as in the Agreement, both in terms of procedures to offer the remedy and as
regards its substance.  As for procedures, the obligation to explore constructive remedies should imply
that the authorities of the developed country take th e initiative to seek an alternative to the imposition
of the anti-dumping duty and to effectively get involved in the process.  For instance, the developedG/ADP/AHG/W/127
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country authorities should suggest to the expo rters involved in the process the possibility of
price undertakings.   They should actively involve themselves in the process of discussing the
undertaking and, if requested by the exporters, help in its formulation.  To fulfil the obligation of
exploring the constructive remedies, the authorities must play an active role in the discussion and not
simply wait passively for the exporters to present a proposal of undertaking or restrict themselves toinforming the deadline for its presentation.
Moreover, it would be important to define a time-frame for the authorities of the
developed country to take the initiative of suggesting the price undertaking.   In view of the fact
that an affirmative preliminary determination of dumping, injury and causal link allows for the
imposition of preliminary duties, and since such a measure bears a negative impact on exports of the
product concerned, the investigating authorities shall take the initiative to explore such
constructive measures before the imposition of the preliminary duties.
As for a concrete example of a "constructive remedy" to be agreed upon by Members, one
could establish parameters for the level of the price undertaking.   Two situations could be
foreseeable:  (a) the undercutting margin is inferior to the margin of dumping;  and (b) the margin ofdumping is inferior to the undercutting.  In the first scenario, the price undertaking should be guided
by the price that is necessary to eliminate injury, whereas, in the second case, the price increase
resulting from the undertaking should be that necessary to eliminate dumping.
This could be translated as a "lesser price" commitment  (similar to the concept of "lesser
duty").  In the case of Members that do not use a "lesser duty" rule, this could be considered a
constructive measure to be explored by the authorities.
These are some suggestions of ways to operationalize the "Special and Differential" treatment
provision that Brazil offers the Committee on Anti-Dumping, with a view to helping with thefulfilment of the mandate contained in paragraph 7.2 of the Implementation Decision of Doha.
2. Article 5.8:  Time-frame to be used in determining a negligible volume of dumped
imports
Article 3.3 of the Anti-Dumping Agreement establishes that:
Where imports of a product from more than one country are simultaneously subject to
anti-dumping investigations, the investigating authorities may cumulatively assess the
effects of such imports only if they de termine that (a) the margin of dumping
established in relation to the imports from each country is more than de minimis as
defined in paragraph 8 of Article 5 and the volume of imports from each country isnot negligible (…).
Article 5.8 of the same Agreement, in its turn, reads:
(…)  There shall be immediate termination in cases where the authorities determine
that the margin of dumping is de minimis,  or that the volume of dumped imports,
actual or potential, or the injury, is negligible.  The margin of dumping shall beconsidered to be de minimis if this margin is less than 2 per cent, expressed as a
percentage of the export price.  The volume of dumped imports shall normally be
regarded as negligible if the volume of dum ped imports from a particular country is
found to account for less than 3 per cent of imports of the like product in the
importing member, unless countries which individually account for less than 3 percent of the imports of the product in the importing Member collectively account for
more than 7 per cent of imports of the like product in the importing Member.G/ADP/AHG/W/127
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Therefore, if it is determined that the volume of imports from a country is negligible, those
imports cannot be cumulated with imports from other origins.  Also, the investigation shall be
immediately terminated as regards the products from that origin, since the exports are potentially
insignificant and will not cause injury to the domestic industry.
Since the Agreement does not specify the period which should be taken into account by the
investigating authority to determine whether the margin of dumping is " de minimis " or the volume of
dumped imports is negligible, further clarification is necessary on this issue.  Brazil considers that
the share of imports of each country under inve stigation should be calculated based on the
period of investigation for the existence of dumping.
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