RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/Q1/PER/8
G/SCM/Q1/PER/8
8 May 1998
(98-1845)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal:  Spanish
NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS
Replies of Peru1 to Questions from
Venezuela2
The following communication, dated 4 May 1998, has been received from the Permanent
Mission of Peru.
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It should be pointed out that, by virtue of Legislative Decision 26407 published on
18 December 1994, the Peruvian Congress approved the Agreement Establishing the World Trade
Organization and the Agreements contained in th e Final Act of the Uruguay Round, and incorporated
those texts in domestic Peruvian legislation.  Accordingly, the Anti-Dumping Agreement and the
Agreement on Subsidies and Countervailing Measures entered into force on 1 January 1995 and have
the status of domestic law as their provisions are directly applicable in Peru.
Consequently, Peru enacted Supreme Decree 043-97-EF for the purpose of regulating the
procedural and administrative aspects of the arrangements applicable to the conduct of investigations.
Question 1
Determination of the normal value in particular market situations
Could Peru clarify what the special factors, ref erred to in Article 5 of its legislation, are
which do not permit a proper comparison of prices?
Reply
The domestic legislation is confined to regulating aspects not covered by the Anti-Dumping
Agreement, thereby fulfilling a supplementary rule.  Article 5 of Supreme Decree No. 043-97-EFregulates the application of Article 2.2 of the Anti-Dumping Agreement by establishing two
hypotheses under which particular market situations would prevent a proper comparison, namely:
                                                     
1G/ADP/N/1PER/1/Suppl.2 and G/SCM/N/1/PER/1/Suppl.2.
2G/ADP/Q1/PER/6-G/SCM/Q1/PER/6G/ADP/Q1/PER/8
G/SCM/Q1/PER/8
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1. The existence of tariff or para-tariff barriers such as technical requirements, quality
controls, health formalities, registration of importers or exporters, restrictions on the use of
foreign exchange, etc.
2. Other special factors in the domestic market of the country of origin, such as the
existence of a centralized economy, an economy affected by hyperinflation, special tradetreatment zones, etc.
Question 2
Initiation of the investigation
Could Peru indicate at what moment and in  what way the competent authority verifies
the degree of support for or opposition to the ap plication for an investigation submitted by the
domestic industry?
Reply
Article 18 of Supreme Decree No. 043-97-EF states that an investigation to determine the
existence of imports at dumped or subsidized prices shall be initiated upon a written application
addressed to the Commission by an enterprise or group of enterprises accounting for at least
25 per cent of total domestic production of the product which is the subject of the complaint.
The degree of support is verified within 30 days from the date of submission of the
application, in accordance with the provisions of Article 21 of the above-mentioned Supreme
Decree 043-97-EF.
Under Peruvian law, once the investigation has been initiated, all the parties concerned by the
complaint or parties with a share of the relevant market are entitled to present their arguments for or
against the investigation.  In both cases, the Commi ssion will study the information used in support of
such arguments.
Once the investigation procedure has been initiated, the Commission submits the relevant
questionnaire, with a request for information, both to the trade association concerned and to the
importers and exporters of the product under consideration.
Question 3
Article 18 of the Peruvian legislation provides that the application shall contain the
information requested in the questionnaires.  Could Peru explain to what these questionnaires
connected with the application for an investigation refer?
Reply
The questionnaires connected with the application for an investigation refer to the minimum
essential information required by the investigatin g authority, corresponding in this regard to the
information described in Articles 5.2 and 11.2 of the Anti-Dumping and Subsidies Agreements,
respectively.G/ADP/Q1/PER/8
G/SCM/Q1/PER/8
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Question 4
Calculating of time-limits
Can Peru clarify whether the time-limits provided for throughout its legislation are
calculated in market days or in continuous days?
Reply
The time-limits expressed in days are calculated in market days, while those expressed in
months are calculated on a date-to-date basis.
Question 5
Ex officio investigations
Could Peru indicate in what circumstances an investigation would be initiated without a
written application being made by the domestic industry?
Reply
Article 19 of Supreme Decree No. 043-97-EF prov ides that the Commission may initiate an
investigation into dumping or subsidization ex officio, under the circumstances laid down in
Articles 5.6 and 11.6 of the Anti-Dumping and Subsidies Agreements, respectively.
Question 6
Hearings
Could Peru indicate at what stage in the investigation the authority could hold  the
hearings of the interested parties, as provided for in Article 31?
Reply
Once the investigation has been initiated, the Commission may convene hearings at the
request of any of the interested parties or ex officio.
Question 7
Form and amount of the provisional measures
Could Peru explain how the form and amount of the provisional measures would be
established in accordance with the provisions of the Code of Civil Procedure, as set forth in
Article 33 of the Peruvian legislation?
Reply
The calculation of the amount of the provisional measures to be applied in both dumping and
subsidization cases is governed by the provisions of the WTO Anti-Dumping Agreement and
Agreement on Subsidies and Countervailing Measures, as indicated in Article 42 of Supreme
Decree 043-97-EF.G/ADP/Q1/PER/8
G/SCM/Q1/PER/8
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Article 33 of Decree 043-97-EF provides that the amount of the provisional measures and
their implications for the investigation procedure sh all be governed by the sole amended text of the
Code of Civil Procedure.
The sole amended text of the Peruvian Code of Civil Procedure provides that the purpose of
provisional measures is to verify the facts presented by the parties so as to ensure certainty on the partof the corresponding authority (in this case, the Dumping and Subsidies Commission) about the facts
presented and provide a basis for its decisions.  As can be observed, apart from establishing specific
regulations for the anti-dumping or anti-subsidization procedure, the above-mentioned text sets out a
general procedural principle which is included fo r the sake of procedural and technical coherence.
Accordingly, the above-mentioned Article 33 does not regulate the calculation of provisional
duties or the form in which they are to be determined.
Question 8
Commitments
Could Peru indicate if the commitments referred to in Article 34 et seq  of its legislation
would be accepted only when there has b een a positive preliminary determination?
Reply
The price undertakings regulated in Articles 34 et seq  of Supreme Decree O43-97-EF may
only be given once the corresponding investigation procedure has been initiated.  However, pursuant
to the provisions of Article 8.2 of the Anti-Dumping Agreement, as a precondition for seeking or
accepting an undertaking, the Peruvian authorities require that there should be a preliminary
affirmative determination of dumping or subsidization causing injury.
Question 9
Applications and appeals
Could Peru clarify the difference between the applications for reconsideration and
appeals, provided for in Article 49 of the its legislation?
Reply
These remedies lie against final decisions in administrative investigation proceedings.
An application for reconsideration may be lodged with the same body which issued the
decision complained of, and must be supported by new documentary evidence.  This remedy is
optional and does not preclude submission of an appeal.
An appeal may be lodged with the body which is sued the decision complained of, so that the
case may be referred to the higher authority for a last-instance decision.
With regard to investigations into dumping and subsidization, the administrative body
responsible for the investigation at first instance is the Dumping and Subsidies Commission.  The
Commission's decisions are appealable to the administrative authority of second instance, which in
this case is the Court for the Defence of Competition and Intellectual Property (Competition
Division), this being the last available administrative remedy.G/ADP/Q1/PER/8
G/SCM/Q1/PER/8
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The interested party may lodge an administrative challenge in the courts.
Question 10
Notification to the government of the exporting Member
Could Peru indicate whether, after having received a duly documented application and
before initiating the investigation, it will notify the situation in question to the government of theexporting Member?
Reply
Peru abides by the procedure provided for in Article 5.5 of the Anti-Dumping Agreement, and
accordingly informs the diplomatic mission of the exporting country about the presentation of the
application.
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