RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/AHG/R/4
4 August 1998
(98-3074)
Committee on Anti-Dumping Practices
Ad Hoc Group on Implementation
SUMMARY REPORT OF THE MEETING OF THE
AD HOC GROUP ON IMPLEMENTATION
OF THE COMMITTEE ON ANTI-DUMPING PRACTICES
27-28 APRIL 1998
Note by the Secretariat
1. The Ad Hoc Group on Implementation ("the Group") held its third substantive discussions
concerning the topics referred to it by the Committee on Anti-Dumping Practices ("the Committee")1
The proposed agenda for the meeting, which had been circulated in document WTO/AIR/828, dated
17 April 1998, was adopted.
2. The Chairman (Mr. K. Sukhum, Thailand) reminded the Group that the discussions would
follow the order in which papers were received, as set forth in the agenda.  Members who had
submitted papers on a topic would be asked to briefly present their views, and the floor would then be
opened for general discussion.  The Chairman also noted that the Secretariat had prepared a list ofparticipants at the last meeting of the Group, in October 1997, and requested that delegates, in filling
out the attendance forms, indicate their e-mail or other contact address, in order that a list of
participants at this meeting could be prepared and circulated, including that information.
3. The first topic on the agenda was topic number 1, Article 6.5, "Treatment of Confidential
Information".  Members discussed the proposed illust rative list of information deemed confidential,
and described their individual practices in deciding whether information should be treated as
confidential and handling confidential information.  It was noted that while an illustrative list wouldbe useful, it could not be determinative.  Information treated as confidential in one instance might
appropriately not be deemed as such in another, for instance if the justification for confidential
treatment were inadequate, or the level of aggregation of the information were different.
4. Some Members observed that some information is simply confidential by nature, and
therefore no justification is required for confidential treatment.  Different conceptual bases forjustifying confidential treatment were discussed, in cluding (a) the concept of substantial harm to the
competitive position of the supplier if the information were to be released, (b) whether release of the
information would adversely affect business or comm ercial interests of the supplier. It was observed
that there was substantial subjectivity in these concepts.  The fundamental concern should be to
balance interests of confidentiality and access.
5. Questions were raised about Members' practice in a case where information is deemed
confidential and susceptible of being summarized in non-confidential form, but the supplier of the
information simply refuses to provide a confidenti al summary.  It was noted that the Agreement does
not provide a clear mechanism for dealing with this situation.  One Member's practice in such a case is
                                                     
1The list of topics referred to the Ad Hoc Group was circulated to Members in document
G/ADP/W/401.G/ADP/AHG/R/4
Page 2
to disregard the information, or if it is determined to be correct, use the information.  Another
Member in such a case would, if it rejected inform ation because a request for confidential treatment
was deemed insufficient, or for lack of a non-confidential summary, use other information available in
the case file.  It was noted that this was an area of some concern in light of the provisions of Article
6.5.2.  For instance, assume an authority granted confidential treatment, but no non-confidentialsummary was provided, and the authority was aware from other sources that the information was
correct – would it be obligated to consider that information?  Some Members observed that in such a
case, the information would nonetheless be disregarded, unless and until a non-confidential summary
was provided.  Other Members suggested that, in view of the language of the provision, if the
condition (the correctness of the information in question) was satisfied, the discretion to reject it
disappeared.  It was also noted that to reject and not consider information known to be correct could
cause problems in the context of domestic judicial review.  However, it was observed that if theinformation was rejected, it would not be subject to verification.  Therefore it was unlikely that the
authorities could ever be satisfied that the information was nonetheless correct, and the issue simply
did not arise.  One Member observed that the investigating authorities themselves could disclose a
non-confidential summary of the information if it was relied upon in making a decision.
6. Following the discussions, the Group agreed to ask Members to submit, if they have not
already done so, a list of information considered confidential by nature.  The Group also agreed to ask
Members to consider, and submit their views on, th e following procedural questions posed by the
Chairman, including information on their own practice:  (a) How should confidential information be
submitted to the investigating authorities? (b) How should the non-confidential version of confidential
information be submitted? (c) What are the criteria applied by the investigation authorities in decidingwhether to accept or reject a request for confidential treatment? (d) How is confidential information
handled by the authority? (e) In the event that a Me mber provides access to confidential information,
how should the confidential information be accessed?
7. The Group then turned to the next topic on the agenda, topic number 2, the period of data
collection.  A number of Members expressed broad agreement with Secretariat's DraftRecommendation.  Members noted that a minimum rule was needed, but that any agreement by the
Group should not affect existing legislation that differed.  Several Members reported on the specific
time periods that are applicable under their own domestic practice.   In general, Members stressed the
need for transparency in determining and explaining  the period of investigation in any case.  The
Chairman proposed a revision of paragr aph 4 of the Draft Recommendation (document
G/ADP/AHG/W/22).
8.  Questions were raised concerning the possibility of modifying the period of investigation
after initiation:  how would or could this be done, and what effect would it have on the course of an
investigation – for instance with respect to time limits for responses?  Some Members expressed the
view that it would be more appropriate to establis h the period of investigation at the outset, perhaps
after considering the views of the domestic industry or other interested parties, and then make no
changes.
9. Following the discussion, the Group agreed to ask the Secretariat to circulate a revised draft
recommendation on this topic, taking into account the discussion and points made during the meeting,
including the Chairman's suggested revision of paragraph 4 of document G/ADP/W/AHG/22.
10. The Group then turned to the next topic on the agenda, topic number 3, Article 6.10 sampling
method.  Members addressed some of the issues concerning sampling methods that had arisen in theirown practice.  Particular questions included (a) Whether or not it was appropriate to include
information provided by producers not part of the original sample?  (b) When a sample is selected?
(c) What circumstances, if any, justify modification of the sample?  and (d) Whether, if modifications
are to be made, new consultations are needed on the proposed new sample?  One Member also raisedG/ADP/AHG/R/4
Page 3
questions about which companies are included in an "all others" duty rate – all those for which there is
not a specifically determined margin, whether or not they were included in the sample set?   Another
question concerned distinguishing between obtaining information from the largest number of
producers, and defining a "statistically valid" sample. It was noted that the choice of method can have
a significant effect on the results, i.e. in an industry composed of a few large and many smallcompanies.  The Chairman raised a question concerning the Article 6.10.2 of the Agreement, noting
that the last sentence of that Article provides the "Voluntary responses shall not be discouraged", and
asked how Members implemented this provision in their domestic practice.
11. Following the discussion, the Group agreed to request Members to respond to the questions
posed by Brazil in paragraph 2.1 of its paper, document G/ADP/AHG/W/46.  The Group also agreed
to ask Members to respond to the question posed by the delegation of India, concerning the criteria
applied by investigating authorities in determining, in a particular investigation, whether to base their
investigation on a statistically valid sample, or the largest percentage of the volume of exports from
the country in question which can reasonably be investigated.  Finally, the Group requested Members
to consider the question posed by the Chairman concerning the application and implementation of the
last sentence of Article 6.10.2 of the Agreement.
12. The Group then turned to the next topic on the agenda, topic number 4, Article 5.6, "special
circumstances".  Much of the discussion addressed whether, in a self-initiated investigation, the
investigating authorities are required to verify the level of support for the investigation.  The
consensus that emerged was that, while the cooperation of a major proportion of the domestic industry
was clearly necessary for an investigation to be properly carried out, and thus the "support" of the
industry was needed in a sense, the obligation of Article 5.4 to determine the level of support did notapply in a case of self-initiation under Article 5.6, since there was no application regarding which
support or opposition could be expressed.  However, the evidentiary requirements of Article 5.2 are
applicable, as they are specifically referenced in Article 5.6 itself.
13. Several Members expressed themselves in favour of a restrictive interpretation of the "special
circumstances" sufficient to justify self-initiation under Article 5.6, noting that, for instance, adomestic industry's fear of commercial consequen ces upon filing an application should not justify
self-initiation.  The question of self-initiation in the case of fragmented industries was also discussed,
with several Members suggesting that such circumstan ces could be sufficient to justify self-initiation.
14. Members also discussed the provision of assistance by authorities to applicants.  Among the
issues discussed was the difference between "general and limited" assistance, concerning, for example
procedures for investigations and applications, requirements for applications, etc., and more specific
assistance to individual applicants.
15. Following the discussion, the Group agreed to ask Members to submit further examples, if
they had not already done so, of circumstances which they would consider insufficient to constitute
"special circumstances" in the context of Article 5.6  The Group also agreed to request Members to
supply information concerning the number, if any, of investigations that have been self-initiated in
their practice, and the circumstances in each case which were considered sufficient to constitute"special circumstances" within the meaning of Article 5.6  Finally, the Group agreed to ask the
Secretariat to prepare, based on the disucssion at the meeting and the papers submitted, a draft
recommendation concerning the Article 5.4 requirement to verify support for an application in the
context of self-initiation pursuant to Article 5.6,
16. The Group then turned to the next topic on the agenda, topic number 5, Article 5.5,
notification to the exporting Member.  The discussion indicated that Members generally agreed that
the first and second sentences of Article 5.5 did not conflict.  However, the specific mechanics of
notification under the second sentence of Article 5.5 were the subject of some differences.G/ADP/AHG/R/4
Page 4
17. Several Members expressed concern that any minimum period for the notification to the
exporting Member might be unworkable in the context of some Members' domestic practice.  It was
mentioned by several Members that the purpose of the notification was not entirely clear, and perhaps
a better understanding of the reason for the notification might help in deciding when it must be made.
In this regard, several Members suggested that the purpose of the notification is to give the exportingMember time to prepare for a possible investigation, identify interested exporting companies, etc.
There seemed to be an emerging consensus that notification under the second sentence of Article 5.5
should be made as soon as possible after receipt of a properly documented application, and as early as
possible before initiation, but that a greater degree of specificity, i.e., specifying minimum time
periods, might not be practicable in view of the differences in Members' time-tables at this stage of
the proceedings.
18. There was also discussion of the contents of the notification – generally, Members seemed to
agree that the notification could contain less information than that called for in the notification of
initiation under Article 12.1.  It was suggested that simply identifying the date of receipt of the
application, the product concerned, the applicant, and the identified exporters, might be sufficient.
19. The "how" of the Article 5.5 notification was also discussed, including such questions as
whether an oral notification, or a note verbale,  would be adequate, and who should receive the
notification.  In this regard, it was noted that the lack of diplomatic or other representation in some
Members' capitals might explain why such notifications were not always received.  Several Members
suggested that a list of contact points for this purpose would be useful.  It was emphasized by some
Members that any such list could only be indicative, and could not impose an obligation as to the
specific form of notification or a required recipient.
20. Following the discussion, the Group agreed to ask the Secretariat to circulate a draft
recommendation addressing the timing of the notification under Article 5.5, taking into account the
discussions and points made at the meeting and the papers submitted by Members.  The Group also
agreed to ask the Secretariat to circulate a request to Members, asking them to submit the identity and
address of contact points for the Article 5.5 notification, and then the Secretariat would compile theresponses and circulate them as an indicative list.  In addition, the Group agreed to ask Members to
comment on the question of the appropriate contents of the Article 5.5 notification, including the
question of whether the names of exporters or producers who might be the object of an investigation,
should one be initiated, be included.
21. The Group then turned to the next item on the Agenda, topic number 6, Article 6.2 hearings.
Several Members reported on their own practice in the conduct of hearings, including their practice
concerning handling of confidential information, whether hearings were held once or more than once,and whether hearings were required in all cases or only upon request.  Other matters discussed
concerned who presided over hearings, with some Members noting that since there was no single
decision-maker in their system, hearings could be presided over by staff, investigators, or other senior
officials.
22. During the discussion which followed the presentation of papers, Members generally agreed
that it was useful to hold hearings, as it provided an opportunity for decision makers and staff to hear
the arguments of parties, and for parties to hear  and respond to each others' views.  One Member
noted that while hearings may in general be useful, in its own practice, no hearing including opposing
parties had ever been requested.  Guidelines on such matters as transparency, neutrality, who may be
present, timing and frequency, would be useful, but the Group should avoid setting guidelines onwhen hearings should or may be requested, or how often hearings are held.
23. The Chairman noted that several questions concerning how Members conducted hearings had
been addressed in the papers submitted and in the oral presentations, including when requests wereG/ADP/AHG/R/4
Page 5
made for hearings, whether there was a cut off date for requesting a hearing, and if so, how late or
early in the process, how hearings were structured, how oral presentations were handled with
reference to the provisions of Article 6.3, how the authorities handled new information presented in a
hearing, etc.
24. Following the discussions, the Group agreed to ask Members, if they had not already done so,
to provide information on their procedures and practices concerning hearings.  The Group also agreed
to ask the Secretariat to circulate a compilation of information received from Members concerning
their hearing processes, and circulate a checklis t of elements regarding hearings, identified by
Members, that might be considered by the Group at future meetings in assessing the degree to which
there are common points of practice and procedure among Members.  The Group agreed that the
Secretariat would be asked to circulate a request to Members to provide information about their own
practice regarding those common elements, if they have not already done so.
25. The Group then turned to the next item on its agenda, topic number 7, Article 6.9, disclosure
of essential facts.  Members described their different practices concerning disclosure of essential facts.
Practices included disclosure of all information, or disclosure of all public information, with
confidential information disclosed to the party submitting it, disclosure before hearings, before final
decisions, and after final decisions.
26. Much of the discussion centered on the difficulties of determining what facts were essential,
and therefore required to be disclosed, before a final decision was taken.  In addition, several
Members commented on the problem posed by confidential information, which might be considered
essential facts, but could only be disclosed to the party submitting the information.  Thus, there might
be a need to prepare separate disclosure for each party, which would pose a significant administrativeburden.  One Member noted that in its practice everything was disclosed, either publicly, or
confidentially to the parties' representatives.  In this Member's view, everything was essential to the
decision and parties needed all the information to defend their interests, as well as to enable the
correction of clerical errors, and in order for judicial review to be meaningful and independent.  Other
Members suggested that a selected disclosure of those facts the investigating authorities considered
essential on the elements of dumping, injury, and causation, would be more useful than disclosure of
all facts without regard to whether they were "essential" to the final decision to be made.
27. Several Members noted that the disclosure of essential facts was to take place before the final
decision, and therefore must not prejudge the final decision.  Thus, such disclosure should relate to
bare facts without analysis on weight or judgement.  One Member noted the relation between this
topic, and the question of treatment of confidential information, and suggested that the Agreement
should be read consistently across these two requ irements.  Another Member noted that different
methods of disclosure could all be acceptable under the Agreement.
28. Following the discussions, the Group agreed to ask Members, if they had not already done so,
to provide information concerning the minimum facts they believe must be disclosed as "essential
facts".  The Group also agreed to ask the Secretariat to circulate a list of such "essential facts"
identified by Members, that could form the basis for discussions of a general "minimum list" ofessential facts to be disclosed.
29. The Group then turned to the next item on its agenda, topic number 10, Article 9, duty
assessments.  Members described their individual mechanisms for duty assessments, including their
procedures for refunds and, in the case of one Member, reviews for assessment purposes.  Several
Members reported that, while they had legislative provisions dealing with this matter, they had nopractical experience, as no requests for refunds or reviews had ever been received.  Questions raised
included whether, in the case of refund investigations, the level of duty should be changed
prospectively, whether the methodology for calculating dumping margins in refund or reviewG/ADP/AHG/R/4
Page 6
investigations should be the same as in the orig inal investigation, and differences between refund or
assessment reviews, and reviews conducted for other reasons.  In this latter context, it was observed
that refund procedures and reviews for duty assessment purposes concerned only normal value and
export price, while other reviews could address other issues, such as whether the domestic industry
continued to be injured, or whether its condition had improved or worsened, changes in behaviour or
the circumstances of exporters and domestic producers, etc.  Questions were also raised concerning
how Members calculated refunds in cases where a lesser duty was applied.  One Member noted that in
such cases, there was no re-examination of the injury level, but that the refund, if any, was premised
on a finding that the actual dumping was less than the amount of the duty paid.  Another question
concerned how refunds should be calculated in the case of a duty rate based on a sample, where the
information for the refund proceeding concerned an individual company.  Questions were also raised
concerning how refunds were requested, how importe rs could know and/or demonstrate that excess
duty had been paid, and the extent of the refund review – i.e., whether new questionnaires were sent
out.
30. Following the discussion, the Group agreed to as k Members who apply the lesser duty rule, if
they had not already done so, to provide information concerning their application of the lesser duty
rule.  The Group also agreed to ask Members, if they had not already done so, to provide informationon how they handle duty assessments, how they hand le refund procedures, and their views concerning
the intersection between refund procedures and judici al review.  The Group agreed to revert to this
topic at a later date.
31. The Group then turned to the next item on its agenda, topic number 8, Article 12, public
notices.  It was noted that there appeared to be a substantial overlap between the requirements ofArticle 12 regarding public notices of determinations and Article 6.9 disclosure of essential facts, as
well as a relation between Article 12 and the Article 16.4 requirement of notification of preliminary
and final actions.
32. Questions were raised as to what constitutes "public" notice – i.e., publication in the official
Gazette of the Government, publication in a newspaper, posting on the internet, etc.  Members alsodiscussed what specifically was included in the various public notices required to be issued under
Article 12.
33. Following the discussions, the Group agreed to ask Members, if their domestic investigating
and/or decision-making authorities maintain a web-site on the internet, to submit the relevant internet
address(es) (URL) to the Secretariat, which would circulate a list of such home-page addresses to
Members.  The Group also agreed to request Members to submit information concerning their practice
regarding Article 12 public notices, with specific reference to how public notices are issued (in whatofficial document or newspaper, or other form), and what are the contents of the various public
notices issued at different points of the investigation process.
34. The Group did not reach the last item on the agenda, topic number 9, contents of preliminary
affirmative determinations, during the course of the meeting, and agreed therefore that it would be
taken up as the first item on the agenda of the next meeting.  The Group noted that Members wereencouraged to submit papers on this topic.
35. The Group agreed that its next meeting would be scheduled in conjunction with the October
regular meeting of the Committee, on Monday and Tuesday, 26-27 October 1998.
36. The Group agreed that papers and other subm issions for the Group's next meeting should be
transmitted to the Secretariat no later than 14 September 1998.
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