WORLD TRADE
ORGANIZATIONTN/RL/W/83
25 April 2003
(03-2215)
Negotiating Group on Rules Original:  English
PROPOSAL ON REVIEWS
Paper from Brazil;  Chile;  Colombia;  Costa Rica;  Hong Kong, China;  Israel;  Japan;  Korea;
Norway;  Singapore;  Switzerland;  the Separate Customs Territory of Taiwan,
Penghu, Kinmen and Matsu;  and Thailand
The following communication, dated 24 April 2003, has been received from the delegations
of Brazil;  Chile;  Colombia;  Costa Rica;  Hong Kong, China;  Israel;  Japan;  Korea;  Norway;
Singapore;  Switzerland;  the Separate Custom s Territory of Taiwan, Penghu, Kinmen and Matsu;
and Thailand.
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This proposal concerns the Reviews of Anti-Dumping orders.  As it will be recalled, this issue
has been identified in document TN/RL/W/10.  Other Members have referred to this issue in
document TN/RL/W/47 and TN/RL/W/66.
This proposal indicates one way to overcome or resolve the problem of the arbitrary
introduction of rules, procedures, and methodologies in reviews that differ from those in the original
investigations.  The discussions in the Negotiating Group may assist in improving this proposal.Consequently, we reserve our right to modify or complement the proposal as appropriate.
In preparing and/or analysing specific provisions, it is clear that amendment of the existing
text may have an impact on other Articles of the AD Agreement, which have so far not been explicitly
addressed.  These links cannot be fully addressed until we have seen a comprehensive overview ofproposed amendments.  Consequently, we also reserve the right to make proposals on provisions
which may not have been explicitly addressed so far for clarification or improvement.
Issue: Reviews
Relevant Provision: Articles 9.3, 9.5 and Article 11.2
Description of a Problem outlined in the AD Friends Paper (TN/RL/W/10)
The current AD Agreement does not clearly articulate the concepts, procedures and
methodologies applicable to reviews under Article 9.3 (anti-dumping duty assessment), Article 9.5
(new shipper reviews) and Article 11.2 (revocation reviews).  The lack of explicit rules makes it
possible for the authorities to arbitrarily introduce rules, procedures, and methodologies into these
reviews that differ substantially from those in the original investigations and thereby place an undue
burden on the respondent.  Such practices are also pursued to artificially inflate the calculated
dumping margins and/or to continue to impose an anti-dumping duty that is not necessary to offset
dumping.TN/RL/W/83
Page 2
This situation should be rectified to provide enhanced predictability as well as to ensure that
the basic substantive provisions, methods and procedures are applied throughout the AD Agreement.
Illustrative Example of Problem:
An importing country imposed an antidumping duty on exports of roses by Company A.
Company A then adjusted its export price, based on the dumping margin methodologies used in the
original investigation, so as to not commit any further dumping.  Company A believed there was no
dumping after the imposition of the antidumping du ties, and requested a review of the anti-dumping
duty assessment.  Company A was surprised by the results of the review because the dumping margin
was determined on each export sale in comparison with the monthly weighted-average home marketsales, not on the comparison of annual weighted-averag e prices in both markets that had been used in
the original investigation.
Elements of a Solution:
• First element: Clarify that the provisions of Articles 2 (Determination of Dumping),
3 (Determination of Injury), 4 (Definition of Domestic Industry), 5 (Initiation and SubsequentInvestigation), and 6 (Evidence) shall apply to the reviews, whenever applicable, under
Articles 9.3, 9.5 and 11.2, with the exception of the specific rules concerning these reviews.
In particular, the de minimis rule and/or its threshold in Article 5.8 should be applied to these
reviews to the extent that it is appropriate.  In any case, the de minimis threshold should beapplied to duty assessment conducted under Article 9.3.  In addition, the same methodology
that was applied to the original investigation for comparison between the normal price and the
export price as stipulated in Article 2.4.2 should be applied to these reviews unless a different
methodology is requested by the exporters.
• Second element: Clarify that the request for Article 9.3 reviews can only be made by
exporters or importers.
• Third element:  Clarify that the margin of dump ing in an Article 9.3 review shall be based on
all imports from a specific exporter that were entered into the importing Member for not lessthan one year, and not on an individual import basis.
• Fourth element:  Improve the rule so that the reviews are not unfairly extended to the
prejudice of the responding parties.  To this end, clarify (1) that reviews under Articles 9.3and 11.2 must be completed within 12 months, (2) that authorities are encouraged to pay
interest at a reasonable rate if duties are not refunded within 90 days following the completion
of the review and (3) that reviews under Article 9.5 must be completed within 9 months after
the date on which a request for a review has been made, unless an extension of the procedureis requested by the new shipper.
• Fifth element: Clarify, through the development of harmonized indicative lists relating to the
assessment of dumping and the “likelihood of injury” under Article 11.2, that the burden ofproof is on those parties advocating the continuation of the antidumping order.
As for the assessment of dumping, the following points shall be included in the harmonized
indicative list ; (1) dumping margins to be considered are those based on current market conditions and
pricing, not the pricing during the period of the orig inal investigation; and (2) in case the measure is
subject to reviews after the origin al measure, the authorities shall rely on the margin found in the mostTN/RL/W/83
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recent review; (3) if no dumping margin has been f ound, the “likelihood of injury” test shall not apply
and the measure shall be terminated.
As for the assessment of the “likelihood of injury”, the following points shall be included in
the harmonized indicative list ; (1) the likelihood of injury caused by the imports shall be based on the
current competitive circumstances of the domestic industry and the relevant exporters, and not on
information from the original investigation; (2) the authorities shall conduct their examination in
accordance with Article 3 of the ADA, based on facts, and not merely on allegation, conjecture or
speculation.  (3) The determination made by th e authorities whether the continuation of the
antidumping duty is warranted or not, shall be based on the current volume of the dumped imports.
Explanation:
(For the first element of a solution)
• The importance of establishing multilateral control applies not only to the original
investigation, but also with equal force to all the subsequent phases of an anti-dumping
procedure, including the various reviews provided for in Articles 9 and 11.
• However, Articles 9 and 11, per se, do not contain detailed substantive provisions governing
the conduct of the reviews provided for in those Ar ticles.  This has resulted in the application
of arbitrary rules by many Members and to the inability of the WTO to establish multilateral
control with respect to the application of these Articles seen in conjunction with other
substantive and procedural provisions.  Thus, the detailed substantive provisions of the ADA,
in particular those contained in Articles 2-6, should apply not only to the original
investigation, but also to the Articles 9 and 11 reviews whenever applicable.
• In fact, it should be pointed out that some WTO Members apply the same rules to reviews.
For example, a relevant regulation of a WTO Member reads; “the relevant provisions of this
Regulation with regard to procedures and the conduct of investigations, excluding thoserelating to time limits, shall apply to any review carried out pursuant to paragraphs 2, 3, and 4
[governing sunset, changed circumstances, and newcomer reviews].”
1  (emphasis added.)
• The comparison methodology stipulated in Article 2.4.2 is a useful discipline to prevent a
possible source of distortion in the calculation of the dumping margin.  Without such a
discipline, there is a possibility that Members might apply an arbitrary methodology regardingthe comparison of the normal value and the export price,  resulting in an unjustified finding of
dumping or a bloated margin of dumping.  Ar ticle 2.4.2 should apply to Article 9.3 reviews
even under the current Agreement, in light of the chapeau of Article 9.3 which provides that
"the amount of the anti-dumping duty shall not exceed the margin of dumping as established
under Article 2."  If Article 2.4.2 does not apply to Article 9.3, and consequently authoritiesmay 'zero' dumping margins in average to transaction comparisons, this will result in a duty
calculation exceeding the margin of dumping as established under Article 2.  This point must
be clarified and stipulated in precise form.
• The current de minimis  standard of 2 per cent for dumping margins is set out in Article 5.8.
There is no reason why this standard should not be applied to reviews to the extent that it isappropriate.  In fact, the 2 per cent de minimis  standard is used in reviews by some WTO
Members, including the EC.
2
                                                     
1 Article 11(5) of EC’s Basic Regulation.
2 See Article 11(9) of the Basic Regulation.TN/RL/W/83
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(For the second element of a solution)
• Article 9.3 sets forth the procedures for determining the amount of refund from the deposited
or collected anti-dumping duty.  Whether or not the deposit is made by the importer or by the
exporter of the product subject to a measure, the refund-procedure exclusively relates to theseinterested parties and not to the domestic industry.  It is, therefore, natural to set forth that
only the importer or the exporter may request Article 9.3 reviews.  Indeed, neither the
domestic industry nor the authorities have  interests in the refund of the AD duty.
Furthermore, if an Article 9.3 review can be initiated upon the request of the domestic
industry, it can be used to harass importers and exporters because the review imposes
substantial administrative and economic burdens.
(For the third element of a solution)
• Article 9.3 does not provide the period of imports for which the margin of dumping shall be
calculated in a review.  This ambiguity allows the authorities to calculate the margin ofdumping on an individual import basis in a review, and consequently, allows the authorities to
use a dumping margin calculation methodology that is substantially different from the
methodology in the original investigation.  In an original investigation, the authorities are
required to calculate the margin of dumping based on the sales and cost data for a certainperiod of time, normally for one year.  The margin of dumping in an Article 9.3 review,
therefore, should also be calculated with re spect to all imports as a whole, and not with
respect to an individual import and/or not for a period of less than one year.  This clarification
also will contribute to increased transparency and predictability of reviews under Article 9.3.
(For the fourth element of a solution)
• Although Article 11.4 states that reviews should “normally” be concluded within 12 months,
too often authorities do not complete the review in a year.  Twelve months should besufficient to conduct a review under Articles 9.3 and 11.2 and provide an answer to
respondents about their possibilities to trade in a foreign market.
• When the authorities do not promptly return duties wrongly collected from respondents
within 90 days, they should be encouraged to pay a reasonable rate of interest to the
respondents, as if the respondents had been refunded their duties, within the time-frame
provided for in the Agreement.
• Although Article 9.5 states that new shipper reviews shall be carried out on an accelerated
basis, there have been many instances where these reviews have not been completed on sucha basis.  A more specific time-period should be applied to avoid the unjustifiable
circumstance for new shippers who have not exported and are not related to any of the
exporters and producers subject to the anti-dumping duties on the product.  In special
circumstances, a longer period for the review may be necessary, but in any case no more than12 months.  It is also important to set a time-limit for the Authorities to initiate new shipper
reviews after the date on which a request for a review has been made.  In addition, it seems to
be necessary to define requirement conditions for such a request.
(For the fifth element of a solution)
• Article 11.2 does not provide a guideline for the assessment of dumping and the likelihood
assessment of injury.  As a consequence, Members have developed widely differing standardsTN/RL/W/83
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for the assessment, undermining the ability of the WTO to maintain discipline on revocation
reviews.  Therefore, the present situation calls for the development of harmonized  indicative
lists.
- In the practice of certain Members, the determination of whether the anti-dumping duty
is no longer warranted is often based on the unsubstantiated assumption that, if the
measure were terminated, the exporters would revert to the export price prior to the
imposition of the measure.  Such unsubstantiated assumptions are made, even though
Article 11.2 does not provide for the use of a “likelihood test” for dumping.  In fact,
Article 11.2 provides for the “likelihood test” exclusively with respect to the injury.  In
addition, Members following this practice require the exporters to demonstrate that,
irrespective of the termination of the measure, they will not revert to the old price.
- There is no basis for such an interpretation of Article 11.2.  It also reverses the burden of
proof, as pursuant to Article 11.2, it is not the respondents that should demonstrate that
the termination of the measure is not likely to lead to continuation or recurrence of
dumping.
• For this reason, in all cases, including where there has been no import since the imposition of
the measure, it should be made clear in the harmonized  indicative list that the presumption is
that the termination of measure will not lead to continuation or recurrence of dumping.
- The indicative list should make it clear that the authorities or domestic industries bear
the burden to demonstrate that there in fact is likelihood of continuation or recurrence of
injury.  
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