RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/Q1/PER/15
G/SCM/Q1/PER/15
23 May 2001
(01-2615)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal:  English/
Spanish
NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS
Replies to Questions Posed by the UNITED STATES1
Regarding the Notification of PERU2
The following communication, dated 9 April 2001, has been received from the Permanent
Mission of the United States.
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By Legislative Decision No. 26407, published on 18 December 1994, the Congress of Peru
approved the Agreement establishing the World Trade Organization and the Agreements contained inthe Final Act of the Uruguay Round and incorporated their provisions into Peruvian domestic law.
Accordingly, the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing
Measures came into force on 1 January 1995 and have the status of domestic law, their provisions
being directly applicable in this country.
Peru has issued Supreme Decree 043-97 -EF and Supreme Decree No. 144-2000-EF
(amending the former) – "Regulations on Dumping and Subsidies", which regulate the legal andadministrative procedures needed to carry out investigations.
1. In making the "domestic producer" dete rmination under Article 5 of the Amended
Regulations, does Peru not intend to cons ider whether the producers are related to importers , as
well as exporters of the allegedly dumped or subsid ized product, in keeping with Article 4.1(i) of
the AD Agreement?
Reply
In making the domestic industry determination, the Dumping and Subsidies Commission of
INDECOPI applies in conjunction the WTO Anti-Dumping Agreement, Supreme Decree
No. 043-97-EF and Supreme Decree No. 144-2000-EF.
Does Peru plan to identify precisely the "relevant provisions" referred to in this
provision?
                                                     
1G/ADP/Q1/PER/13-G/SCM/Q1/PER/13.
2G/ADP/N/1/PER/1 + Suppl.1, Corr.1, Suppl.2, Corr.1;  G/SCM/N/1/PER/1 + Suppl.1, Corr.1, Suppl.2,
Corr.1.G/ADP/Q1/PER/15
G/SCM/Q1/PER/15
Page 2
Reply
The Ministry of Industry, Trade, Integration and International Trade Negotiations is the
Peruvian authority responsible for determining whether applicants are domestic producers and arerepresentative.
2. New Article 22 bis provides that parties must submit all evidence within six months of
the date the initiation was published; however, at the Commission’s discretion, this deadline
may be extended up to three months.  What standard does the Commission intend to apply in
deciding to extend the deadline for filing evidence?
Reply
Points which the Commission might address in considering an extension of the deadline are:
• The need for further evidence before a decision can be taken.
• Giving the parties an opportunity to submit further evidence.
• Safeguarding the parties' right of defence in the proceedings.
• Enhancing the transparency of the Commission's decisions.
It should be pointed out that by extending the investigation period by three months the
Commission is acting within the provisions of  Article 5.10 of the Anti-Dumping Agreement and
Article 11.11 of the Agreement on Subsidies and Countervailing Measures.
3. The amendment to Article 23 of the Regulations (the section which discusses the use of
Facts Available), authorizes the Commission to impose a fine on parties who:
(1) Obstruct the taking of evidence;(2) use the proceedings for unlawful or fraudulent purposes;  or(3) "in any way hinder or obstruct the normal conduct of the investigation
procedure, in accordance with the applic able rules on the subject, including the
supplementary rules of administrative law contained in Articles 110 et seq . of the
Code of Civil Procedure."
• Do the Peruvian authorities draw adve rse assumptions about the information
missing from the record when a party has failed to cooperate?  Would a party
also be subject to fines in such a situat ion?  Under what circumstances would the
authorities impose fines in addition to using facts available?
Reply
The Peruvian investigating authority does not draw adverse assumptions if a party fails to
submit information as required.  The amendment to Article 23 of the Regulations on Dumping and
Subsidies has two purposes.  The first is to fo rewarn the parties to the procedure as to the
Commission's response to breaches of good faith.  The other is to discourage parties from
inappropriate conduct in the administrative proceedings.  Administrative fines are applied as a resultof parties' conduct, in the proceedings, but they are unrelated to the determination of dumping, injury
and causal link required in order to make preliminary and final determinations, positive or negative,
on the basis of available facts.G/ADP/Q1/PER/15
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Page 3
• What will the Peruvian authorities cons true to be "obstruction," "hindering,"
"normal conduct," and "unlawful or fraudulent purposes"?
Reply
Obstruction of the taking of evidence means failure by the parties to submit evidence in a
proper and timely manner.  The actions specified in the amendment to Article 23 refer essentially to
any conduct which results in an unnecessary delay in the investigation proceedings or the submission
of information which does not reflect the truth and so may lead to wrong decisions being taken.
• Are these terms defined in the relevant sections of the Code of Civil Procedure,
or is the determination of any transgression left to the discretion of the
Commission?
Reply
Article 110 of the sole amended text of the Code of Civil Procedure regulates the liability of
the parties, their counsel, their proxies and authorized  third parties.  It provides that they shall be
liable for any injury they may cause by any act of malice or bad faith when proof of such conduct
comes to light in the course of the proceedings.  Article 112 of the sole amended text of the Code of
Civil Procedure regulates malice or bad faith.  It stipulates that malice or bad faith exists:
1. When a complaint, rebuttal or objection obviously lacks a basis in law;
2. when inaccurate facts are wittingly alleged;3. when any part of the evidence is removed, damaged or spoiled;4. when proceedings or a procedural act are used for plainly unlawful ends or with
unlawful or fraudulent intent;
5. when the taking of evidence is obstructed;  and6. when the normal conduct of the proceedings is repeatedly hindered by whatever
means.
• By what standard will the Peruvian au thorities determine whether a change in
the situation has been "significant" enough to warrant a review?
Reply
See reply to question 10.
4. Amended Article 27 provides that all non-confidential evidence shall be made available
to interested parties and that the Commission may send copies of the proceedings "to anyonewho so requests and shows proof of a legitimate interest."
- What is the distinction between "evidence" and "copies of the proceedings?"  Does the
latter include the former, or does "proceedings " refer only to official determinations,
such as provisional determinations, made by the Commission?G/ADP/Q1/PER/15
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Page 4
Reply
As required by Article 8.1.2 of the Anti-Dumping Agreement and Article 12.1.2 of the
Agreement on Subsidies on Countervailing Measures, the evidence submitted by a party is made
available to other interested parties intervening in the investigation.
A public version of the file, containing the information submitted by the parties, the
information required by the Commission and other information obtained by the Commission is
available to and may be consulted by the parties if they so request.
Under Peruvian law, interested parties may participate in the administrative procedure at any
stage.  In order to do so they must obtain copies of all submissions filed prior to their participation,
including evidence.
- What do the Peruvian authorities consider to be a "legitimate interest," and how does a
non-party prove such an interest?
Reply
Article 5 of the sole amended text of the La w on General Rules of Administrative Procedure
stipulates that in order for an applicant's interest to  be the sole basis for its legal standing, the interest
must be direct, personal, current and demonstrated.
5. The Amendment to Article 29 provides an opportunity to cure defective claims for
confidential treatment.  Where the confidentiality of information is in dispute, do the Peruvian
authorities intend to treat the disputed informat ion as confidential until the issue is resolved?
Reply
In the event of a dispute as to the confidentiality of a certain type of information, the dispute
is not treated as confidential, but the information at issue is.
- Will the authorities provide reasons for the rejection of a claim for confidential
treatment?
Reply
Article 39 of the sole amended text of the Law on the General Rules of Administrative
Procedure provides that all decisions of admini strative bodies must be properly substantiated.
Supreme Decree No. 144-200-EF includes an illust rative list of the information which may be
treated as confidential on condition that the claim duly states the reasons therefor and a non-confidential summary or else a statement of the reasons why summarization is not possible is
provided, in accordance with Article 6 of the Anti-Dumping Agreement and Article 12.4 of the
Agreement on Subsidies and Countervailing Measures.
6. Under Article 30, Peruvian authorities may retain information claimed to be
confidential notwithstanding failure to show good cause for the claim, to provide a public
summary or to withdraw the request for confidential ity if it is demonstrated to be correct using
"convincing evidence from an appropriate source."G/ADP/Q1/PER/15
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- Will such information be treated as confidential information?  If so, how will interested
parties be informed of it under Article 6.9 of the AD Agreement?  What would
constitute an "appropriate source" within the meaning of this provision?
Reply
If the parties fail to comply with the procedure established in Article 30 of the Regulations on
Dumping and Subsidies in filing a claim for confidentiality, the Commission may return the
information.  In other words, the information will not be taken into consideration for the final
decision.
Article 30 of the above Regulations reproduces the provisions of Article 6.5 of the Anti-
Dumping Agreement.
7. Under Article 31, are hearings to be open to the public?  If so, will the authorities grant
a closed session to a party, upon request, to faci litate the presentation of arguments regarding
confidential matters?
Reply
Article 45(d) of Legislative Decree 807, "Law Organizing the Functions of INDECOPI",
provides that the members of the Commission may not hold hearings with the parties or their counsel
or representatives unless the other party is present.  In other words, it is not possible to hold a hearing
of only one of the parties.
Any hearings during the procedure will be held in accordance with Article 6.2 of the Anti-
Dumping Agreement and Article 12.2 of the Agreement on Subsidies and Countervailing Measures.
- Are the hearings to be conducted on the reco rd, with a formal transcript made and
available for inspection by the parties?
Reply
All hearings are recorded.  Recordings and transcripts are made available to the parties at
their request.  The information taken into consideration for the final decision is that submitted in
writing by the parties subsequent to the hearings, in accordance with Article 6.3 of the Anti-Dumping
Agreement and Article 12.2 of the Agreement on Subsidies and Countervailing Measures.
8. The text and subject of Article 33 as contained in the 16 May3 notification of Supreme
Decree No. 043-97-EF, does not appear to bear any relationship to the te xt and subject of the
amendment contained in the current notification.
- Have there been other amendments containe d in the current notification?  Have there
been other amendments to Article 33?
Reply
The only amendments to Supreme Decree No. 04 3-97-EF is those made by Supreme Decree
No. 144-2000-EF.
                                                     
3 See WTO document G/ADP/N/1/PER/1/Suppl.2, dated 28 August 1997.G/ADP/Q1/PER/15
G/SCM/Q1/PER/15
Page 6
- Would the Peruvian Government explain the relationship between the two texts?  For
example how does the "form and amount of provisional measures" addressed by
previously notified Article 33 relate to the translation requirements for documents in
another language addressed by the amendment?
Reply
Calculation of the amount of the provisional duties, whether on dumping or subsidies, is
governed by the provisions of the Anti-Dumping Agreement and the Agreement on Subsidies and
Countervailing Measures, as stipulated in Article 42 of the Peruvian Regulations on Dumping and
Subsidies.
Article 33 of the Regulations mentions that the amount of the provisional measures and their
significance in the investigation process will be go verned by the sole amended text of the Code of
Civil Procedure.  The latter establishes that the purpose of provisional measures is to prove the facts
alleged by the parties, in order to satisfy the competent authority (in this case the Dumping and
Subsidies Commission) that they constitute a sound basis for its decisions.
Article 33 of the Regulations on Dumping and Subsidies, rather than setting specific rules for
anti-dumping or anti-subsidy procedures, states a general principle which is included in the interests
of procedural and legislative consistency.
Accordingly, the two provisions are not inco mpatible insofar as the concept "form and
amount of the provisional measures" includes the submission of unofficial translations.
9. Please explain the reference to criminal and civil liability contained in amended
Article 33.
Reply
Since the amendment does not require translations to be official, Peruvian legislation needed
a mechanism for the purpose of discouraging translators from changing the meaning of translated
texts submitted to the Commission as evidence.
10. By what standard will the Peruvian auth orities determine whether a change in the
situation has been "significant" enough to warrant a review under amended Article 47?
Reply
Article 47 of the Regulations is consistent with Article 11.2 of the Anti-Dumping Agreement.
However, changes in the situation must be assessed by the investigating authority on a case-by-case
basis.
11. The second paragraph of new Article 14(II) of Supreme Decree No. 043-97-EF states
that the Peru Dumping and Subsidies Commission  (Commission) may take into account in its
analysis of the impact on the domestic industry of dumped or subsidized imports "the origin
and characteristics of the inputs incorporated in the like product by the domestic producers in
the production process" if they are deemed relevant.
(a) Could Peru indicate in what circumstances  the Commission is likely to deem this
factor to be relevant to its impact analysis?  In such circumstances, how is the
Commission likely to take this factor into account?G/ADP/Q1/PER/15
G/SCM/Q1/PER/15
Page 7
(b) Does the Commission also take the origin  and characteristics of the inputs into
the like product into account in defining the like product or the domestic
industry?
Reply
Article 3.4 of the Anti-Dumping Agreement states that the examination of the impact of the
dumped imports on the domestic industry shall include an evaluation of all relevant economic factors
and indices having a bearing on the state of the industry concerned.  It goes on to state that the list of
such factors is not exhaustive.  Accordingl y, Supreme Decree No. 144-2000-EF introduces an
additional criterion into the evaluation process.
The term "like product" is defined in accordance with Article 2.6 of the Anti-Dumping
Agreement and footnote No. 48 of the Agreement on Subsidies and Countervailing Measures.
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