WORLD TRADE
ORGANIZATIONTN/RL/W/44
24 January 2003
(03-0397)
Negotiating Group on Rules Original:  English
TREATMENT OF CONFIDENTIAL AND NON-CONFIDENTIAL INFORMATION
UNDER ARTICLE 6.5 OF THE WTO ANTI-DUMPING AGREEMENT
Submission by Australia
As Australia noted in its comments paper in response to the United States’ paper (document
TN/RL/W/35) on topics for further consideration relating to investigatory procedures in anti-dumping
and countervailing duty investigations, Australia considers that the issue of the treatment of
confidential and non-confidential information merits examination by the Negotiating Group on Rules.
While references throughout this paper refer to the WTO Anti-Dumping Agreement, comments madeare equally applicable to the corresponding provisions in the WTO Agreement on Subsidies and
Countervailing Measures.
At present Article 6.5 of the WTO Anti-Dumping Agreement (ADA) provides that
information which is of itself confidential or which is provided on a confidential basis be treated assuch.  In relation to the latter, the question of whether the investigating authorities should treat the
information as confidential is dependent on good cause being shown.  Australia notes the Guatemala
– Cement II Panel (WT/DS156/R, 24 October 2000) found that the requirement to show “good cause”
applied to both (1) “information which is by nature confidential” and (2) information “which is
provided on a confidential basis”.  The Panel considered that this “good cause” requirement is
imposed on the interested party submitting the confidential information at issue.  At footnote 856 of
its Report, the Panel noted that it had made no findings as to how “good cause” may be shown inrespect of information which is “by nature” confidential.
Under ADA Article 6.5.1 interested parties providing confidential information are required to
furnish a non-confidential summary.  These summaries are to permit a reasonable understanding of
the substance of the information submitted in confidence.  ADA Article 6.5.2 provides that if arequest for confidentiality is not warranted and the supplier of the information is unwilling to make
the information public or authorize its disclosure in summary form, authorities may disregard such
information unless it can be demonstrated to its satisfaction that the information is correct.
Australian experience
In relation to the lodgement of a dumping application, the Australian Customs Service (ACS)
requires that information concerning material injury be set out by reference to indexing in the non-
confidential version to assist interested parties.
ACS’ experience is that, once an investigation has been initiated, interested parties often
make claims of confidentiality for information which would not ordinarily be considered to be
confidential.  This situation could arise because of a genuine misunderstanding or to frustrate the
access to non-confidential information by making unfounded claims for confidentiality.  One possible
reason for confusion is that there are two bases for claiming confidential information under the ADA:
information is confidential by nature or information where confidentiality is claimed.  In the latter
situation, parties may feel that it is up to them to simply claim information is confidential and feelTN/RL/W/44
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compelled to make such claims, even though the information is not in fact confidential.  Although
such a claim should only be made upon “good cause” being shown, there is no meaning given as to
what constitutes “good cause” or how good cause may be shown.
The other issue is how promptly a non-confidential summary should be placed on the public
file.  Ideally a non-confidential summary should be placed on the public file at the same time as the
investigating authorities receive the confidential version.  At present the ADA is silent on this
question.  This is compounded by the fact that it is the responsibility of the party providing the
information to supply the non-confidential summary.  If that party wants to delay a non-confidential
summary on the public file, then little can be done at present.
If a non-confidential summary is not provided, the investigating authorities “may disregard
such information unless it can be demonstrated to their satisfaction from appropriate sources that the
information is correct” (Article 6.5.2).  Information from “appropriate” sources is not defined.  One
example could be where a verification visit to one exporter validates some of the information from the
other exporter who has incorrectly claimed confidentiality.
Background
The question of non-confidential information was raised in the Ad Hoc Group on
Implementation in the Committee on Anti-Dumping Practices.  A synthesis of the discussion is set out
at G/ADP/AHG/W/65.
It would be useful to have a definition of what constitutes “confidential” information.
Although there are two tests for what is confidential, i.e. information that is by its nature confidential
and information, which is provided on a confidential basis, there seems to be some acknowledgement
that there may not be a need for a distinction between the two.  It has been suggested within the AdHoc Group on Implementation that an illustrative list be prepared setting out what information could
be considered confidential.
1  Information could be considered to be confidential if it is not in the
public domain and if its disclosure would be likely inter alia :
• To be of significant competitive advantage to a competitor, e.g. production costs distribution
costs, upstream and downstream pricing data, profit or loss margins, certain conditions of sale,
business sales statistics, research/invention data, technical designs, business or trade secrets
concerning the nature of a product or production process, specification of components, capacity
data, investment data, inventory data, performance/ profitability data, details of margins of
dumping and adjustments calculated by investigating authorities;
• To have a significant adverse effect upon the party who submitted the information, or the party
from whom the information was acquired by th e party who submitted the information, e.g.
customer and supplier lists;
• To have significant adverse effect upon any party to  whom the information relates, e.g. statistical/
market share information;
• To prejudice the commercial position of a person who supplied or who is the subject of the
information, e.g. names of individual companies requesting the initiation of an investigation, who
may be subject to commercial retaliation by customers who are also importers;
                                                     
1 The list provided is drawn from G/ADP/AHG/W/65.  However, we suggest that “certain conditions of
sale” (first dot point) would not relate to those commonly available.TN/RL/W/44
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• To prejudice the security or defence of a Member, or the international relations of a Member;
• To prejudice the entrusting of information to the authorities of a Member;
• To prejudice the supply of similar information or information from the same source;
• To disclose a trade secret or
• To effect the maintenance of legal privilege.
It also seems to be generally accepted that information that is in the public domain or, in the
case of material injury, is in narrative form or is based on widely available company information,
should be presumed non-confidential and therefore could not, except in exceptional cases, be
considered as confidential.
In other words, an alternative approach may therefore be to identify matters, a definition, or
type of information, which would constitute, or be considered to be, “non-confidential” information.
No guidance is given in the ADA as to what is an acceptable means for providing a non-
confidential summary.  In most instances, it may be too difficult to give meaningful guidance.
However in relation to the question of material injury, it may be useful to specify that such
information can be expressed in a non-confidential form through the use of numerical indices or theuse of ranges.  For example, in Australia’s anti-dumping applications, the investigating authorities
request that non-confidential summaries be provided on claims for material injury using indexation.
Questions for consideration
1. Should the distinction be made in ADA Article 6.5 between information which is considered
to be by nature confidential and information which is provided on a confidential basis, or
should the claim be for information which is confidential?
2. Could the above illustrative list be used to assist in giving guidance to authorities on what is
confidential information?
3. Should there be a statement in ADA Article 6.5 that information that is in the public domain
cannot be considered to be confidential?
4. What is meant by the term “upon good cause being shown”?
5. Should a time limit be specified for a party to supply a non-confidential summary?6. What is meant by “demonstrated to their satisfaction from appropriate sources that the
information is correct” in ADA Article 6.5.2?
7. Should specific consideration be given in the case of claims of material injury for the use of
indices or ranges as being the appropriate/ preferred method of providing a non-confidential
summary of such information?
8. Should this be an option for all numeric data, for example responses provided in exporter
questionnaires?  In this regard it would be acknowledged that it would be too burdensome for
an exporter to provide a non-confidential questionnaire in relation to all costing information.TN/RL/W/44
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However it may be possible for this information to be provided at a more general level e.g.
labour, overheads, and raw materials.
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