WORLD TRADE
ORGANIZATIONTN/RL/W/143
22 August 2003
(03-4332)
Negotiating Group on Rules
NEGOTIATING GROUP ON RULES
NOTE BY THE CHAIRMAN
Compilation of Issues and Proposals Identified by Participants in the Negotiating Group on Rules
The Doha Ministerial Declaration establishes that, in the initial phase of negotiations on WTO
Rules, "participants will indicate provisions, including disciplines on trade distorting practices, that
they seek to clarify and improve in the subsequent phase"1.
This working paper contains a summarized compilation of issues and provisions indicated by
participants for clarification and improvement in doc uments presented to date in the context of the
Negotiating Group on Rules.  The issues and proposals compiled in this paper refer to the Agreement
on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the " Anti-
Dumping Agreement ") and to the Agreement on Subsidies and Countervailing Measures (the " SCM
Agreement "), including WTO disciplines on fisheries subsidies.  This paper is without prejudice to the
identification of additional issues and proposals by participants and will be updated accordingly.
Only a brief summary of the specific issues and proposals raised in the Negotiating Group by
participants is provided herein.  This compilation is not intended to provide a detailed explanation of
these issues and proposals, but rather to give a general overview of their main elements.  As such, thispaper does not reflect the elements of participants' submissions providing conceptual descriptions,
expressions of general policy positions, comments, questions, answers and reactions.  These are
contained in full in the submissions to the Negotiating Group, as listed in Annex I.  The summaries of
the issues and proposals included in this paper reflect, as far as possible, the language used in the
submissions to the Negotiating Group.
To the extent that they are directly related to  existing specific provisions, most of the issues
and proposals compiled in this paper follow the st ructure of the aforementioned Agreements, rather
than their original order in documents circulated  to the participants of the Negotiating Group on
Rules. In such cases, for ease of referen ce, the relevant specific provisions of the Anti-Dumping
Agreement  and of the SCM Agreement  have been reproduced in this paper.  The placement of issues
and proposals reflected in this paper under particular sections, headings and/or provisions of the Anti-
Dumping and the  SCM Agreements , and the fact that  some issues or proposals presented by different
participants may be found under a single heading, are simply meant to facilitate their listing in this
paper, and are not meant to change their substance.  The format and wording of this paper does not in
any way prejudice the position of participants in the negotiations.
This compilation is divided into two parts. Part I contains issues and proposals relating to
anti-dumping. Part II is divided into three subparts.  The first subpart contains issues and proposals
relating to subsidies disciplines.  The second reflects issues and proposals relating to fisheries
subsidies. The third contains issues and proposals on countervailing measures.
                                                     
1 Ministerial Declaration adopted on 14 November 2001, Paragraph 28.TN/RL/W/143
Page i
TABLE OF CONTENTS
PART I......................................................................................................................... ...........................1
ANTI-DUM PING ................................................................................................................... .................1
ARTICLE 2 - DETERMI NATION OF DUMPING................................................................................1
1. Definition of "Sufficient Quantity of Sales of the Like Product in the Domestic
Market for the Determinat ion of Normal Value"........................................................................1
2. Particular Mark et Situ ation.................................................................................................. .......1
3. Determination of Normal Va lue / Affiliated  Parties...................................................................2
4. Sales in the Ordinary Course of Trade / Profit ability Test .........................................................3
5. Use of Cost Data............................................................................................................. ............5
6. Cost Allocation .............................................................................................................. .............5
7. Constructed Value............................................................................................................ ...........6
8. Hierarchy of Options in Cons tructed Value Ca lculation ............................................................6
9. Reasonabili ty Test........................................................................................................... ............6
10. Constructed Export Price .................................................................................................... ........7
11. Cyclical Markets / Perishable , Seasonal, Cycl ical Pr oducts.......................................................8
12. Currency Conversion ......................................................................................................... .........9
13. Prohibition of  Zeroing...................................................................................................... .........10
14. Establishment of Overall Weight ed-Average Dumping Margins.............................................10
15. Single Margin of Dumping for the Entire  Period of Investig ation or Review..........................10
16. Like Product................................................................................................................ ..............11
17. Definition of Product U nder Investig ation ...............................................................................11
18. "Non Market Economy" Clause................................................................................................1 2
19. Definition of "Dumped Imports" .............................................................................................. 13
20. Material Re tardation ........................................................................................................ .........13
21. Market Se gmenta tion......................................................................................................... .......14
ARTICLE 3 - DETERMI NATION OF INJURY ..................................................................................15
22. Cumulative Assessment of  Injury / Cu mulation.......................................................................15
23. Injury Dete rmina tion........................................................................................................ .........16
24. Calculation of Injury Ma rgins............................................................................................... ....16
25. Examination of Impact....................................................................................................... .......17
26. Causation ................................................................................................................... ...............18
27. Threat of Ma terial Injury ................................................................................................... .......19
28. Condition of the Domestic Industry in any Threat of Material Injury Analysis.......................20TN/RL/W/143
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29. "Special Care" Requirement in Respect of Determination of Threat of Material Injury..........21
ARTICLE 4 - DEFINITION OF  DOMESTIC I NDUSTRY .................................................................22
30. Definition of Domestic Industry ............................................................................................. ..22
ARTICLE 5 - INITIATION AND SU BSEQUENT INVE STIGATION ..............................................24
31. Initiation St andards........................................................................................................ ...........25
32. Back to Back Anti-Du mping Inves tigations .............................................................................26
33. Standing Rules .............................................................................................................. ............26
34. Domestic Industry Consisting of Small-S cale or “Unorganised” Sector Producers.................27
35. Initiation and Publicizati on of the App licatio n.........................................................................28
36. Ex Offici o Initia tion....................................................................................................... ...........29
37. Thresholds.................................................................................................................. ...............30
38. Shorter Periods fo r Investig ations.......................................................................................... ...31
ARTICLE 6 - EVIDEN CE ........................................................................................................... .........32
39. Hearing and Meetings........................................................................................................ .......32
40. Availability of Relevant Info rmation from Nationa l Authorities .............................................33
41. Maintenance of a Public Record.............................................................................................. .33
42. Treatment of Confidential and Non-Confidential Information.................................................34
43. Conduct of Ve rifications.................................................................................................... .......37
44. Facts Available ............................................................................................................ ............40
45. Disclosure / Evidence ....................................................................................................... ........41
46. Treatment in Case of a Large Number of Exporters, Producers, Importers or Types of
Products ....................................................................................................................... .............43
47. Favoured Export er Treatment................................................................................................. ..43
48. Procedural Issu es / Sampling................................................................................................ ....43
49. Interested  Parties.......................................................................................................... .............44
ARTICLE 7 - PROVIS IONAL MEAS URES........................................................................................45
50. Provisiona l Meas ures........................................................................................................ ........45
ARTICLE 8 - PRIC E UNDERTAK INGS.............................................................................................46
51. Price Unde rtakin gs.......................................................................................................... ..........46
ARTICLE 9 - IMPOSITION AND COLLECTI ON OF ANTI-DUM PING DUTIE S..........................49
52. Lesser duty................................................................................................................. ...............49
53. Exclusion of  Companies ...................................................................................................... .....51
54. Imposition and Coll ection of Duties......................................................................................... 53
55. Accrual of  Interest ......................................................................................................... ...........53
56. Refund or Reimbursement of the Duty Paid in Excess.............................................................53
57. "All-Othe rs" Rate........................................................................................................... ...........54TN/RL/W/143
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ARTICLES 9 AND 11 - REVIEWS.................................................................................................... ..56
58. Reviews..................................................................................................................... ................58
ARTICLE 10 - RE TROACTIVITY ..................................................................................................... .61
59. Retro activ ity............................................................................................................... ...............62
60. Critical Ci rcumst ances...................................................................................................... ........62
ARTICLE 12 - PUBLIC NOTICE AND EX PLANATION OF DETE RMINATI ONS........................63
61. Public Notice and Explanation of  Determinations / Transparency...........................................65
ARTICLE 13 - JUDI CIAL REVIEW................................................................................................... .67
62. Judicial Review............................................................................................................. ............67
ARTICLE 15 - DEVELOPING  COUNTRY ME MBERS ....................................................................68
63. Special and Differential Treatment for Developing Country Members....................................68
ARTICLE 17 - CONSULTATION AND DISPUTE SE TTLEMENT..................................................70
64. Standard of Review.......................................................................................................... .........70
ARTICLE 18 - FINAL  PROVIS IONS .................................................................................................. 71
65. Detailed National Legi slation/Regu lation.................................................................................72
OTHER I SSUES................................................................................................................... .................73
66. Circumvention ............................................................................................................... ...........73
67. Duty Refund................................................................................................................. .............73
68. Harmonization of the Anti-Dumping Agreement and the SCM Agreement ...........................73
69. Reducing the Cost of Inves tigations ......................................................................................... 73
70. Swift Control Mechan ism for In itiations ..................................................................................74
71. Technical Assistance / Capacity Building ................................................................................76
72. Public Interest ............................................................................................................. ..............76
73. Concurrent Application of Anti-D umping and Safeguard Measures........................................76
74. Persistent  Dumping.......................................................................................................... .........76
75. Repeated Dumping............................................................................................................ ........77
76. Codification of Recommendations and Decisions....................................................................77
77. Periods of Data Collection for Anti-Dumping Investigations ..................................................7778. Duty Absorption ............................................................................................................. ..........77
79. Consultation Prio r to Initi ation ............................................................................................ .....77
80. High Inflation Economies.................................................................................................... .....78
81. Consistent Use of Terminology ............................................................................................... .78
82. Preliminary Determin ation................................................................................................... .....78
83. Nature and Composition of Investigating Au thorities ..............................................................78
84. Small Economies: Re gional Authority .....................................................................................79
PART II ........................................................................................................................ ........................80TN/RL/W/143
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I.  SUBSIDIES DISCIPLINES .....................................................................................................8 0
ARTICLE 1 - DEFINITI ON OF SUBS IDY..........................................................................................80
85. Definition of Subsidy....................................................................................................... .........81
ARTICLE 2 - SPECIFICITY........................................................................................................ .........82
86. Specifi city ................................................................................................................. ................83
ARTICLE 3 - PROHIBITION........................................................................................................ .......84
87. Prohibited Subsid ies ........................................................................................................ .........84
88. "Local Content" Subsidies ................................................................................................... .....85
ARTICLE 3 / ANNEX I - ILLUSTRATIVE LIST OF EXPORT  SUBSIDIES ...................................86
89. Export Credits (Items (j ) and (k) of Annex I) ...........................................................................86
ARTICLE 4 - REMEDIES ........................................................................................................... .........88
90. Remedies for Prohibited Subsidies / En forcement ...................................................................89
91. Accelerated Timeframes ...................................................................................................... .....90
92. Permanent Group of Experts.................................................................................................. ...90
ARTICLE 6 - SERI OUS PREJ UDICE.................................................................................................. 91
93. Serious Prejudice Remedy / Actionable Su bsidie s ...................................................................94
ARTICLE 7 - REMEDIES ........................................................................................................... .........95
94. Remedies.................................................................................................................... ...............95
ARTICLE 8 - IDENTIFICATION OF  NON-ACTIONABLE SUBSIDIE S.........................................96
95. Non-Actionable Subsidies .................................................................................................... ..100
ARTICLE 25 - NOT IFICAT IONS..................................................................................................... .101
96. Notific ations............................................................................................................... .............102
ARTICLE 27 - SPECIAL AND DIFFERENTIAL TREATMENT OF DEVELOPING
COUNTRY ME MBERS.........................................................................................................104
97. Special and Differential Treatment for Developing Country Members..................................106
OTHER ISSUES ............................................................................................................................... .......109
98. Natural Resources and Energy Pricing ...................................................................................109
99. Taxation .................................................................................................................... ..............109
100. Codification of Analytical and Quantification Methodologies...............................................109
101. Traffic Ligh t Framework .................................................................................................... ....109
102. Provision of Equity Capital................................................................................................ .....109
103. Subsidies and th e Environment.............................................................................................. .109
104. Trade- and Market-Dis torting Practices..................................................................................110
105. Privatiz ation.............................................................................................................. ..............110
II. FISHERIES SUBSIDIES........................................................................................................ 111
106. Need for Improved WTO Disciplines.....................................................................................111TN/RL/W/143
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107. Scope of Fisheries Subsidies............................................................................................... ....111
108. Categorization of Fi sheries Subsidies.....................................................................................1 11
109. Framework for Addressing the I ssue of Fisherie s Subsidies ..................................................111
110. Non-Actionable Fisheries Subsidies.......................................................................................11 1
111. Expanded Category of Prohibited ("Red Light") Fisheries Subsidies / Prohibition of
Capacity Enhancing Subsidies................................................................................................112
112. Revision of Fish eries Subs idies ............................................................................................ ..113
113. Serious Prejudice and a Presumptively Harmful ("Dark Am ber") Cate gory..........................113
114. Utilisation of Expertise of Internati onal Bodies .....................................................................113
115. Improved Notification of  Subsid ies Programmes / Transparency .........................................114
116. Special and Differential Treatment for Developing Country Members..................................114
III. COUNTERVAIL ING MEAS URES.......................................................................................116
ARTICLE 11 - INITIATION AND SUBS EQUENT INVEST IGATION ..........................................116
117. Initiation St andards....................................................................................................... ..........118
118. Definition of Product U nder Investig ation .............................................................................118
119. Standing Rules ............................................................................................................. ...........118
120. Initiation and Publicizati on of the App licatio n.......................................................................119
ARTICLE 12 - EVIDEN CE .......................................................................................................... ......120
121. Availability of Relevant Inform ation from Nationa l Authorities ...........................................120
122. Maintenance of a Public Record............................................................................................. 120
123. Protection and Disclosure of Confidential In formation..........................................................121
124. Conduct of Ve rifications................................................................................................... ......122
125. Facts Available ............................................................................................................ ...........123
126. Disclosure / Evidence ...................................................................................................... .......124
127. Interested  Parties......................................................................................................... ............125
ARTICLE 14 -  CALCULATION OF THE AMOUNT OF SUBSIDY IN TERMS OF THE
BENEFIT TO THE RECIPIENT............................................................................................126
128. Calculation of the Amount of a Subsidy in Terms of the Benefit to the Recipient ................126
129. Additional Guidelines to Article 14........................................................................................ 127
ARTICLE 15 - DETERMIN ATION OF INJURY ..............................................................................128
130. Like Product............................................................................................................... .............128
131. Market Se gmenta tion........................................................................................................ ......128
132. Cumulative Assessment of  Injury / Cu mulation.....................................................................129
133. Examination of Impact...................................................................................................... ......130
134. Causation .................................................................................................................. ..............131
135. Condition of the Domestic Industry in any Threat of Material Injury Analysis.....................132TN/RL/W/143
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ARTICLE 16 - DEFINITION OF  DOMESTIC I NDUSTRY .............................................................133
136. Definition of Domestic Industry ............................................................................................ .134
ARTICLE 17 - PROVIS IONAL MEAS URES....................................................................................135
137. Provisiona l Meas ures....................................................................................................... .......135
ARTICLE 18 - UN DERTAKI NGS .....................................................................................................1 36
138. Price Unde rtakin gs......................................................................................................... .........137
ARTICLE 19 - IMPOSITION AND COLLECT ION OF COUNTERVA ILING DUTIES................138
139. De minimis Rule in Article 11.9 and Its Relation With Article 19.........................................139
140. Accrual of  Interest ........................................................................................................ ..........139
141. "All-Othe rs" Rate.......................................................................................................... ..........139
142. Lesser Duty................................................................................................................ .............139
143. Exclusion of  Companies ..................................................................................................... ....139
144. Refund or Reimbursement of the Duty Paid in Excess...........................................................139
145. Favoured Export er Treatment................................................................................................ .140
ARTICLES 19 AND 21 - REVIEWS..................................................................................................1 41
146. Reviews.................................................................................................................... ...............143
ARTICLE 20 – RE TROACTIVITY....................................................................................................1 44
147. Retro activ ity.............................................................................................................. ..............145
148. Critical Ci rcumst ances..................................................................................................... .......145
ARTICLE 22 - PUBLIC NOTICE AND EX PLANATIONS OF DE TERMINAT IONS ...................146
149. Public Notice and Explanation of  Determinations / Transparency.........................................148
ARTICLE 23 - JUDI CIAL REVIEW..................................................................................................1 49
150. Judicial Review............................................................................................................ ...........149
ARTICLE 32 - OTHER FI NAL PROVIS IONS..................................................................................150
151. Detailed National Legi slation/Regu lation...............................................................................150
ANNEXES II AND II I............................................................................................................. ............151
152. Verification System for Drawback a nd Substitution Drawback Schemes..............................153
153. Capital Goods and Consumables to be Included in the Definition of Inputs Consumed........154154. No Obligation for the Exporter C oncerned to Impor t the Inputs............................................154
OTHER I SSUES................................................................................................................... ...............155
155. Circumvention .............................................................................................................. ..........155
156. Duty Refund................................................................................................................ ............155
157. Harmonization of the Anti-Dumping Agreement and the SCM Agreement .........................155158. Reducing the Cost of  Investig ations .......................................................................................1 55
159. Swift Control Mechan ism for In itiations ................................................................................156
160. Technical Assistance / Capacity Building ..............................................................................157TN/RL/W/143
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161. Codification of Decisions .................................................................................................. .....157
162. Perishable, Seasonal , Cyclical Products .................................................................................158
163. Persistent S ubsidization ................................................................................................... .......158
164. Procedural Issu es / Sampling............................................................................................... ...158
165. Subsidized Domestic  Like Product.........................................................................................15 8
166. Consistent Use of Terminology .............................................................................................. 158
167. Preliminary Determination.................................................................................................. ....159
168. Standard of Review......................................................................................................... ........159
169. Nature and Composition of Investigating Au thorities ............................................................159
170. Small Economies: Re gional Authority ...................................................................................159TN/RL/W/144
Page 1
PART I
ANTI-DUMPING
ARTICLE 2 - DETERMINATION OF DUMPING
1. Definition of "Sufficient Quantity of Sales of the Like Product in the Domestic Market
for the Determination of Normal Value"
- clarify this provision in order to avoid that the test of  "representativeness of domestic sales of the
like product" be used as a way to artificially reduce the possibility of calculating normal value on thebasis of the sales to the domestic market of the expo rting country or to artificially increase the use of
constructed values; define whether the test should be applied to the product as a whole or to the
categories.  (TN/RL/W/29)
2. Particular Market Situation
- define "particular market situation" under Article 2.2 to limit the discretion of the investigating
authorities to refuse to use the normal price of the product sold domestically when comparing with the
export price.
2 (TN/RL/W/66)
                                                     
2 See proposal in TN/RL/W/47 listed under Section 4.Article 2
Determination of Dumping
(…)2.2 When there are no sales of the like product in the ordinary course of
trade in the domestic market of the exporting country or when, because of the
particular market situation or the low volume of the sales in the domestic market
of the exporting country
2, such sales do not permit a proper comparison, the
margin of dumping shall be determined by comparison with a comparable priceof the like product when exported to an appropriate third country, provided that
this price is representative, or with the cost of production in the country of origin
plus a reasonable amount for administrative, selling and general costs and for
profits.
(…)
_______________________________________________________________________ 
2  Sales of the like product destined for consumption in the domestic market of the
exporting country shall normally be considered a sufficient quantity for the determinationof the normal value if such sales constitute 5 per cent or more of the sales of the productunder consideration to the importing Member, provided that a lower ratio should be
acceptable where the evidence demonstrates that domestic sales at such lower ratio are
nonetheless of sufficient magnitude to provide for a proper comparison.TN/RL/W/143
Page 2
3. Determination of Normal Value / Affiliated Parties  
- examine the issue of determination of normal value (affiliated parties). (TN/RL/W/86)
- discuss the issue of transactions involving affiliated suppliers, for purposes of determination of
normal value (define "affiliation"). (TN/RL/W/10)
- address the issue of whether home-market sales to affiliates may be included in, or excluded from,
the calculation of normal value. (TN/RL/W/10)
- establish clear guidance under the Anti-Dumping Agreement  on the approach to treat transactions
between affiliated companies in the context of normal value. (TN/RL/W/66)
- analyze the sales relationship on the domestic market of the producer/exporter and establish criteria
for such analysis, since the Anti-Dumping Agreement  provides for this formula only in respect of the
relationship between exporters and importers.  (TN/RL/W/81)
- clarify the Anti-Dumping Agreement  to address situations in where one party is in a position to
exercise de facto  control over another, even when there is no equity ownership or other "legal"
control, or where two parties are in such a position that they may be expected to act in concert (Article
4.1 of the Anti-Dumping Agreement  defines related parties within the domestic industry for purposes
of standing and injury, but does not define affiliation for purposes of analysing issues arising from
relationships among foreign producers and resellers). (TN/RL/W/130)TN/RL/W/143
Page 3
4. Sales in the Ordinary Course of Trade / Profitability Test
- define "reasonable period of time" for prices which do not provide for recovery of all costs.
(TN/RL/W/6)
- clarify and improve the tests for sales in the ordinary course of trade. (TN/RL/W/7)
- identify the manner in which Members have operationalized the criteria of sales "in the ordinary
course of trade" and "particular market situation"3, and arrive at an agreement as to the conditions and
circumstances of sales that are to be considered under these specific provisions.  (TN/RL/W/47)
                                                     
3 See Section 2 supra .Article 2
Determination of Dumping
(…)
2.2.1 Sales of the like product in the domestic market of the exporting country
or sales to a third country at prices below per unit (fixed and variable) costs of
production plus  administrative, selling and general costs may be treated as not
being in the ordinary course of trade by reason of price and may be disregarded
in determining normal value only if the authorities3 determine that such sales are
made within an extended period of time4 in substantial quantities5 and are at
prices which do not provide for the recovery of all costs within a reasonable
period of time.  If prices which are below per unit costs at the time of sale are
above weighted average per unit costs for the period of investigation, such prices
shall be considered to provide for recovery  of costs within a reasonable period of
time.
(…)
______________________________________________________________
3 When in this Agreement the term "authorities" is used, it shall be interpreted as
meaning authorities at an appropriate senior level.
4 The extended period of time should normally be one year but shall in no case be less
than six months.
5 Sales below per unit costs are made in substantial quantities when the authorities
establish that the weighted average selling pr ice of the transactions under consideration
for the determination of the normal value is below the weighted average per unit costs, orthat the volume of sales below per unit costs represents not less than 20 per cent of the
volume sold in transactions under consideration for the determination of the normal
value.TN/RL/W/143
Page 4
- clarify whether investigating authorities should  be allowed to disregard sales below cost even when
prices provide for recovery of all costs in the period of investigation. (TN/RL/W/6) (TN/RL/W/86)
- explore the possibility of further expanding the conditions under which sales made at a loss would
not be excluded for purposes of determining normal values (especially with respect to those industries
whose product pricing is extremely sensitive to shifts in supply and demand, and agricultural andother commodity sectors whose producers are typically "price takers" and who usually have fixed
costs that cannot be easily reduced over the short term when there is a decline in selling prices).
4
(TN/RL/W/47)
                                                     
4 See Section 11 infra.TN/RL/W/143
Page 5
5. Use of Cost Data
- examine the issue of authorities' discretion on the use of cost data. (TN/RL/W/86)
- define circumstances under which authorities should be required to accept cost data as recorded in
the producer’s accounting book (e.g. if the accounting records are audited by duly qualified person or
agency). (TN/RL/W/10)
6. Cost Allocation
- provide more comprehensive direction concerning the determination and allocation of costs.
(TN/RL/W/47)
- provide for the determination of costs giving recognition to the type of manufacturing or production
process used in respect of the goods under investigation; for example, certain production processes
result in joint-production where multiple products, that may have significantly different sales values,are produced simultaneously using the same inputs and incur the same average production costs on a
per unit basis (in such cases, an allocation of costs made on the basis of sales values results in a more
meaningful comparison of costs to prices than an allocation of costs based on production volumes,
provided that this allocation is made in accordance with generally accepted accounting principles).
(TN/RL/W/47)Article 2
Determination of Dumping
(…)2.2.1.1 For the purpose of paragraph 2, costs shall normally be calculated on the
basis of records kept by the exporter or producer under investigation, provided that
such records are in accordance with the generally accepted accounting principles
of the exporting country and reasonably reflect the costs associated with the
production and sale of the product under consideration.  Authorities shall considerall available evidence on the proper allocation of costs, including that which is
made available by the exporter or producer in the course of  the investigation
provided that such allocations have been historically utilised by the exporter or
producer, in particular in relation to establishing appropriate amortization and
depreciation periods and  allowances for capital expenditures and other
development costs.  Unless already reflected in the cost allocations under this
sub-paragraph, costs shall be adjusted appropriately for those non-recurring itemsof cost which benefit future and/or current production, or for circumstances in
which costs during the period of investigation are affected by start-up operations.
6
(…)
_________________________________________________________________
6 The adjustment made for start-up operations shall reflect the costs at the end of the start-
up period or, if that period extends beyond the period of investigation, the most recentcosts which can reasonably be taken into account by the authorities during theinvestigation.TN/RL/W/143
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7. Constructed Value
 - elaborate clearer, more comprehensive and representative criteria for calculations of constructed
normal value. (TN/RL/W/6)
- elaborate Article 2.2.2 to provide clear guidance for the use of information in the calculation of the
constructed normal value. (TN/RL/W/66)
8. Hierarchy of Options in Constructed Value Calculation
- amend the chapeau of Article 2.2.2 specifying that the three options thereunder (items (i) to (iii) set
three separate basis for deriving the amount for SGA expenses and profits to be used in a constructed
normal value calculation) have a hierarchical significance and a subsequent option may be resorted to
only in the absence of relevant data under the preceding option(s). (TN/RL/W/26)
9. Reasonability Test
- impose the limitation enshrined in option 2.2.2(iii), in order to ensure the reasonableness of amount
of profit under options 2.2.2(i) and 2.2.2(ii). (TN/RL/W/26)Article 2
Determination of Dumping
(…)
2.2.2 For the purpose of paragraph 2, the amounts for administrative, selling and
general costs and for profits shall be based on actual data pertaining to production
and sales in the ordinary course of trade of the like product by the exporter or
producer under investigation.  When such amounts cannot be determined on this
basis, the amounts may be determined on the basis of:
(i) the actual amounts incurred and realized by the exporter or
producer in question in respect of production and sales in the domestic
market of the country of origin of the same general category of products;
(ii) the weighted average of the actual amounts incurred and realized
by other exporters or producers subject to investigation in respect of
production and sales of the like product in the domestic market of thecountry of origin;
(iii) any other reasonable method, provided that the amount for profit
so established shall not exceed the profit normally realized by other
exporters or producers on sales of products of the same general category in
the domestic market of the country of origin.
(…)TN/RL/W/143
Page 7
10. Constructed Export Price
- examine the issue of constructed export price. (TN/RL/W/86)
- consider a clear definition of what constitutes association or compensatory arrangements.
(TN/RL/W/29)
- establish criteria for the determination of association and the resale price. (TN/RL/W/81)Article 2
Determination of Dumping
(…)
2.3 In cases where there is no export price or where it appears to the
authorities concerned that the export price is unreliable because of association or acompensatory arrangement between the exporter and the importer or a third party,
the export price may be constructed on the basis of the price at which the imported
products are first resold to an independent buyer, or if the products are not resold
to an independent buyer, or not resold in the condition as imported, on such
reasonable basis as the authorities may determine.
2.4 A fair comparison shall be made between the export price and the normal
value.  This comparison shall be made at the same level of trade, normally at the
ex-factory level, and in respect of sales made at as nearly as possible the same
time.  Due allowance shall be made in each case, on its merits, for  differences
which affect price comparability, including differences in conditions and terms of
sale, taxation, levels of trade, quantities, physical characteristics, and any other
differences which are also demonstrated to affect price comparability.
7 In the cases
referred to in paragraph 3, allowances for costs, including duties and taxes,
incurred between importation and resale, and for profits accruing, should also be
made.  If in these cases price comparability has been affected, the authorities shall
establish the normal value at a level of trade equivalent to the level of trade of the
constructed export price, or shall make due allowance as warranted under thisparagraph.  The authorities shall indicate to the parties in question what
information is necessary to ensure a fair comparison and shall not impose an
unreasonable burden of proof on those parties.
(…)
_________________________________________________________________
7 It is understood that some of the above factors may overlap, and authorities shall ensure
that they do not duplicate adjustments that ha ve been already made under this provision.TN/RL/W/143
Page 8
- identify the situations in which an export price could be considered to be unreliable. (TN/RL/W/81)
- consider whether the investigating authority shou ld explain, in the pertinent determination, the
reasons for considering the export price unreliable, since the mere establishment of association or
compensatory arrangement is not enough. (TN/RL/W/29)
- clarify guidelines applicable to constructed export price so as to rule out asymmetry comparison.
(TN/RL/W/10)
- clarify Articles 2.3 and 2.4 to provide clearer guidelines for a symmetric comparison between
constructed export price and normal value. (TN/RL/W/66)
- require authorities to deduct home-market profits to observe symmetric deduction of costs and
expenses between constructed export price and normal value. (TN/RL/W/10)
11. Cyclical Markets / Perishable, Seasonal, Cyclical Products
-  discuss the issue of cyclical markets (e.g., the fact that prices of certain products may fluctuate
according to seasonal factors, and the  case of rapidly growing manufacturing sector). (TN/RL/W/6)
- clarify and improve the rules pertaining to issues particular to anti-dumping investigations of
perishable, seasonal, and cyclical products (producers may be more vulnerable to dumped or
subsidized imports that enter the domestic market during the limited portions of the year when theirproduct is sold).
5 (TN/RL/W/72)
                                                     
5See also Section 162 infra  on the SCM Agreement and Sections 4 supra  and 30 infra  on the Anti-
Dumping Agreement .TN/RL/W/143
Page 9
12. Currency Conversion
- agree on certain principles in order to ensure the consistent implementation of Article 2.4.1
(currently there is no general agreement on what constitutes "sustained movements" and how
sustained exchange rates fluctuations should be taken into account in converting the export price).(TN/RL/W/105)
- clarify Article 2.4.1 since the 60-day grace period provided for therein may, in certain
circumstances, be interpreted as allowing exporters and foreign producers to delay the submission of
their questionnaire responses. (TN/RL/W/105)
- clarify and improve Article 2.4.1; for example, the current guidance for addressing currency
movements is vague, and is particularly ill-suited for addressing sharp currency fluctuations.
(TN/RL/W/130)
- clarify the agreement to require that Members use exchange rates from sources of recognized
authority, and require that such sources be disclosed to interested parties. (TN/RL/W/130)Article 2
Determination of Dumping
(…)2.4.1 When the comparison under paragraph 4 requires a conversion of
currencies, such  conversion should be made using the rate of exchange on the date
of sale
8, provided that when a sale of foreign currency on forward markets is directly
linked to the export sale involved, the rate of exchange in the forward sale shall be
used.  Fluctuations in exchange rates shall be ignored and in an investigation theauthorities shall allow exporters at least 60 days to have adjusted their export prices
to reflect sustained movements in exchange rates during the period of investigation.
(…)
___________________________________________________________________
8 Normally, the date of sale would be the date of contract, purchase order, order
confirmation, or invoice, whichever establishes the material terms of sale.TN/RL/W/143
Page 10
13. Prohibition of Zeroing
- clarify Article 2.4.2 to explicitly prohibit the practice of zeroing (average dumping margins by
definition should be based on the average of all comparisons, including those that generate negative
margins). (TN/RL/W/6) (TN/RL/W/26) (TN/RL/W/66)
- amend Article 2.4.2 to explicitly provide that regardless of the basis of the comparison of export
prices to normal value (i.e. weighted average-to -weighted average or transaction-to-transaction, or
weighted average-to-transaction), all positive margins of dumping and negative margins of dumping
found on imports from an exporter or producer of the product subject to investigation or review must
be added up. (TN/RL/W/113)
- further amend the first sentence of Article 2.4.2 to clarify that the Article applies to initial
investigations and all subsequent reviews under Articles 9 and 11.6 (TN/RL/W/113)
14. Establishment of Overall Weighted-Average Dumping Margins
- establish clear rules as to the manner in which the overall weighted average margins are to be
calculated. (TN/RL/W/72)
15. Single Margin of Dumping for the Entire Period of Investigation or Review
- add a provision to Article 2.4 clarifying that, regardless of the comparison methodology, if margins
of dumping are determined separately for imports during multiple portions of the entire period of an
investigation or review, the margin of dumping to be determined in the investigation or review must
be a single margin of dumping for all imports during the entire period of investigation or review.7
(TN/RL/W/113)
                                                     
6 See Section 58 infra.
7 See Section 58 infra .Article 2
Determination of Dumping
(…)
2.4.2 Subject to the provisions governing fair comparison in paragraph 4, the
existence of margins of dumping during the investigation phase shall normally
be established on the basis of a comparison of a weighted average normal value
with a weighted average of prices of all comparable export transactions or by a
comparison of normal value and export prices on a transaction-to-transaction
basis.  A normal value established on a weighted average basis may becompared to prices of individual export transactions if the authorities find a
pattern of export prices which differ significantly among different purchasers,
regions or time periods, and if an explanation is provided as to why such
differences cannot be taken into account appropriately by the use of a weighted
average-to-weighted average or transaction-to-transaction comparison.
(…)TN/RL/W/143
Page 11
16. Like Product
- clarify the definition of "like product" to limit the scope of product types that can be considered as a
single "like product".8 (TN/RL/W/47)
- establish criteria for determining the like product; the following criteria could be suggested as part of
a non-exhaustive list: physical characteristics and uses, degree of substitutability, considerations of
quality, function, technical specifications, tariff classification, users' perceptions, common distribution
channels, overlapping geographical areas of the domestic market and price levels. (TN/RL/W/81)
- consider whether non-hierarchical non-exhaustive criteria, based on the criteria set out in the Japan
Alcoholic Beverages  case, should be incorporated in the definition of what constitutes "like product".
(TN/RL/W/91)
- consider whether the word "identical" should be replaced with "goods, which have essentially the
same physical characteristics" as part of the process of specifying criteria for the purpose of
determination of dumping and determination of injury, as well as for the definition of domestic
industry. (TN/RL/W/91)
- consider whether separate criteria should be developed, which make a distinction for the purpose of
Article 2 of the Anti-Dumping Agreement  relating to determination of dumping and Article 3 of the
Anti-Dumping Agreement  relating to the determination of injury. (TN/RL/W/91)
17. Definition of Product Under Investigation
- provide a more rational and disciplined framework to determine the scope of “product under
investigation” so that anti-dumping measures would only be applied to those products found to be
"dumped" and causing injury. (TN/RL/W/10)
- establish a clear and strict criterion in the Anti-Dumping Agreement  for the determination of
"product under investigation". (TN/RL/W/66)
- discuss appropriate criteria for determining the “product under investigation” to limit arbitrary
expansions of product scope. (TN/RL/W/7) (TN/RL/W/10)
                                                     
8 See Section 130 infra  on the SCM Agreement .Article 2
Determination of Dumping
(…)
2.6 Throughout this Agreement the term "like product" ("produit
similaire") shall be interpreted to mean a product which is identical, i.e. alike in
all respects to the product under consideration, or in the absence of such a
product, another product which, although not alike in all respects, has
characteristics closely resembling those of the product under consideration.
(…)TN/RL/W/143
Page 12
18. "Non Market Economy" Clause
- revoke the "non market economy" clause. (TN/RL/W/66)Article 2
Determination of Dumping
(…)
2.7 This Article is without prejudice to the second Supplementary Provision
to paragraph 1 of Article VI in Annex I to GATT 1994.
Ad Article VI
Paragraph 1
(…)
2. It is recognized that, in the case of imports from a country which has a
complete or substantially complete monopoly of its trade and where all domesticprices are fixed by the State, special di fficulties may exist in determining price
comparability for the purposes of paragraph 1, and in such cases importing
contracting parties may find it necessary to take into account the possibility that a
strict comparison with domestic prices in such a country may not always be
appropriate.TN/RL/W/143
Page 13
19. Definition of "Dumped Imports"
- consider the elaboration of clearer, more detailed definition of "dumped imports", in order to avoid
misinterpretations and consequently the misuse of anti-dumping duties. (TN/RL/W/29)
- consider whether the Anti-Dumping Agreement  should be clarified to specify methods that
investigating authorities can readily implement in th e injury investigation to calculate the volume of
dumped imports for purposes of Articles 3.1 and 3.2 which do not, in accordance with Article 6.10,require examination in the dumping investigation of each individual producer or importer.
(TN/RL/W/130)
- include a note to Article 3.1 explaining that dumped imports are those coming from or originating in
a country or enterprise for which a positive, more than de minimis margin of dumping has been
determined. (TN/RL/W/132)
20. Material Retardation
- clarify the term "material retardation" so as to en able investigating authorities to determine in which
circumstances there is material retardation. (TN/RL/W/105)
- consider not restricting the definition of the term " new industry " to industries which are being
established from zero; take into account the situation of embryonic, restructuring and recentlyprivatized industries. (TN/RL/W/105)
- identify tests similar to those set forth in Article 3 of the Anti-Dumping Agreement  with respect to
material injury and threat thereof in order to assi st investigating authorities to determine in which
circumstances material retardation occurs. (TN/RL/W/105)Article 3
Determination of Injury9
3.1 A determination of injury for purposes of Article VI of GATT 1994 shallbe based on positive evidence and involve an objective examination of both
(a) the volume of the dumped imports and the effect of the dumped imports on
prices in the domestic market for like products, and (b) the consequent impact of
these imports on domestic producers of such products.
(…)_________________________________________________________________
9 Under this Agreement the term "injury" shall, unless otherwise specified, be taken to
mean material injury to a domestic industry, threat of material injury to a domesticindustry or material retardation of the establishment of such an industry and shall beinterpreted in accordance with the provisions of this Article.TN/RL/W/143
Page 14
21. Market Segmentation
- consider whether Article 3 of the Anti-Dumping Agreement  should be clarified to state expressly that
investigating authorities have the discretion to engage in sectoral analysis of the impact of dumped
imports on the domestic industry in appropriate circumstances, as long as their analysis of impact
encompasses the entire domestic industry.9 (TN/RL/W/130)
                                                     
9 See Section 131 infra  on the SCM Agreement .TN/RL/W/143
Page 15
ARTICLE 3 - DETERMINATION OF INJURY
22. Cumulative Assessment of Injury / Cumulation
- establish which factors should be considered to evaluate if the conditions of competition between
imported products from different countries and between them and the like domestic product are the
same. (TN/RL/W/6) (TN/RL/W/7) (TN/RL/W/66)
- set an appropriate parameter for the definition of negligible volume of imports. (TN/RL/W/29)
- develop criteria, as those being discussed within the Working Group on Implementation, in defining
conditions of competition. (TN/RL/W/86)
- apply a flexible approach when taking into account the factors for assessing conditions of
competition (e.g. conditions of competition need to be considered over the whole of the investigation
period and not just at a particular point in time). (TN/RL/W/86)
- establish criteria for considering the conditions of competition between the imported products of
different origins and the conditions of compet ition between the imported products and the like
domestic product (criteria similar to those set ou t for determining the like product are suggested).10
(TN/RL/W/81)
- consider whether the Anti-Dumping Agreement  and the SCM Agreement  should be clarified to
expressly provide for the cumulation of dumped imports with subsidized imports, in order to assess
the effects of the unfair imports on the domestic industry.11 (TN/RL/W/98)
                                                     
10 See Section 16 supra .
11 See Section  132 infra  on the SCM Agreement and  Section 68  infra on the  Anti-Dumping Agreement.Article 3
Determination of Injury
(…)
3.3 Where imports of a product from more than one country are
simultaneously subject to anti-dumping investigations, the investigating
authorities may cumulatively assess the effects of such imports only if they
determine that (a) the margin of dumping established in relation to the imports
from each country is more than de minimis   as defined in paragraph 8 of Article 5
and the volume of imports from each country is not negligible and (b) a
cumulative assessment of the effects of the imports is appropriate in light of the
conditions of competition between the imported products and the conditions of
competition between the imported products and the like domestic product.
(…)TN/RL/W/143
Page 16
23. Injury Determination
- clarify the rules/disciplines pertaining to injury determinations. (TN/RL/W/1)
- design new rules on injury analysis which give more precise guidance; examine whether one could
find straightforward rules for a number of typical "extreme" cases (this could be achieved by
providing guidance to the application of the factors listed in Article 3.2 and Article 3.4 of the Anti-
Dumping Agreement ; such guidance could be obtained by introducing more quantitative elements
where possible).12 (TN/RL/W/138)
- establish adequate guidance to evaluate factors to be considered in the determination of injury.
(TN/RL/W/10)
- clarify Article 3.4 and its relationship with other provisions of Article 3. (TN/RL/W/10)
- clarify Article 3.4 to limit the discretion of the investigating authorities in the evaluation of injury.
(TN/RL/W/66)
- further elaborate some of the mandatory injury parameters for ensuring consistency and
predictability among investigating authorities while making an assessment of the consequent impact
of dumped imports on the domestic products of the like product.  (TN/RL/W/26)
24. Calculation of Injury Margins
- incorporate a provision setting forth disciplines on calculation of injury margins. (TN/RL/W/26)
                                                     
12 This proposal was submitted under the general title of "Proposals on Cost Saving in Anti-Dumping
Proceedings" (TN/RL/W/138). See also Section 69 infra .Article 3
Determination of Injury
(…)
3.4 The examination of the impact of the dumped imports on the domestic
industry concerned shall include an evaluation of all relevant economic factors and
indices having a bearing on the state of the industry, including actual and potential
decline in sales, profits, output, market share, productivity, return on investments,
or utilisation of capacity;  factors affecting domestic prices;  the magnitude of the
margin of dumping;  actual and potential negative effects on cash flow,inventories, employment, wages, growth, ability to raise capital or investments.
This list is not exhaustive, nor can one or several of these factors necessarily give
decisive guidance.
(…)TN/RL/W/143
Page 17
- deliberate upon the following questions relevant to possible disciplines on calculation of injury
margins:
• How will objectivity and transparency in calculation of injury margins be ensured, given the fact
that cost and pricing data of the domestic producers would normally be considered to beconfidential and therefore not available to all the interested parties?
• Which domestic producers should be considered for purposes of calculating the domestic
producers’ price for price under-cutting?
• What should be the time period over which injury margin determination should be made?
• When should price under-cutting/price under-selling appropriately be used?
• What factors should determine a reasonable profit for the domestic industry while calculating
target price for under-selling margin?
• What adjustments should be made between the landed price and the domestic sales price?
• To what extent would the various methodologies which are specified in Article 2.4.2 of the Anti-
Dumping Agreement while determining dumping margins also be applicable for injury margins?
• Should zeroing be prohibited while calculating injury margins? (TN/RL/W/26)
25. Examination of Impact
- consider whether Article 3.4 of the Anti-Dumping Agreement  should be clarified to provide greater
certainty both to investigating authorities and to th e parties that appear before them concerning the
scope of the authority's obligation to examine "r elevant factors and indices" other than the ones
explicitly listed in Article 3.4 of the Anti-Dumping Agreement.
13 (TN/RL/W/130)
- address whether there should be an express limitation on the authority's obligation with respect to
such factors that were never brought to the authority's attention during the course of itsinvestigation.
14 (TN/RL/W/130)
                                                     
13 See Section 133 infra  on the SCM Agreement .
14 See Section 133 infra on the SCM Agreement .TN/RL/W/143
Page 18
26. Causation
- develop the procedures and criteria  utilised to analyze the causal relationship, with a view to ensure
that, even in the presence of other factors, a causal relationship will be found only when there is a
clear and substantial link between the dumped imports and the injury. (TN/RL/W/6)
- elaborate Article 3.5 so that appropriate guidance  is provided to investigating authorities while
separating and distinguishing the injurious effects of other factors from the injurious effects caused by
the dumped imports; furthermore, to invoke anti-dumping measures, there is a need to specify an
appropriate standard for establishing causality between dumped imports and material injury.
(TN/RL/W/26)
- clarify Article 3.5 in order to ensure that a cau sal link could only be established when the dumped
import is the substantial reason for the injury of the domestic industry. (TN/RL/W/66)
- clarify the Anti-Dumping Agreement  to provide authorities practical guidance in implementing the
negative obligation of non-attribution and on how this obligation should relate to the examination of
the effect of dumped imports, while ensuring that any affirmative obligations are clearly set forth inthe Agreement and are workable for authorities to implement.
15 (TN/RL/W/98)
                                                     
15 See Section 134 infra  on the SCM Agreement .Article 3
Determination of Injury
(…)
3.5 It must be demonstrated that the dumped imports are, through the effects
of dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning
of this Agreement.  The demonstration of a causal relationship between the
dumped imports and the injury to the domestic industry shall be based on anexamination of all relevant evidence before the authorities.  The authorities shall
also examine any known factors other than the dumped imports which at the
same time are injuring the domestic industry, and the injuries caused by these
other factors must not be attributed to the dumped imports.  Factors which may
be relevant in this respect include,  inter alia , the volume and prices of imports
not sold at dumping prices, contraction in demand or changes in the patterns of
consumption, trade restrictive practices of and competition between the foreign
and domestic producers, developments in technology and the export performance
and productivity of the domestic industry.
(…)TN/RL/W/143
Page 19
27.  Threat of Material Injury
- define factors such as those in Article 3.4 in making a determination of threat of material injury;
clarify and improve the description of the factors to be considered so that investigating authoritieshave more concrete guidance. (TN/RL/W/6)Article 3
Determination of Injury
(…)
3.7 A determination of a threat of material injury shall be based on facts and
not merely on allegation, conjecture or remote possibility.  The change in
circumstances which would create a situation in which the dumping would cause
injury must be clearly foreseen and imminent.10 In making a determination
regarding the existence of a threat of material injury, the authorities should
consider, inter alia , such factors as:
(i) a significant rate of increase of dumped imports into the
domestic market indicating the likelihood of substantially increased
importation;
(ii) sufficient freely disposable, or an imminent, substantial increase
in, capacity of the exporter indicating the likelihood of substantiallyincreased dumped exports to the importing Member's market, taking into
account the availability of other export markets to absorb any additional
exports;
(iii) whether imports are entering at prices that will have a significant
depressing or  suppressing effect on domestic prices, and would likelyincrease demand for further imports;  and
(iv) inventories of the product being investigated.
No one of these factors by itself can necessarily give decisive guidance but the
totality of the factors considered must lead to the conclusion that further dumped
exports are imminent and that, unless protective action is taken, material injurywould occur.
(…)
_________________________________________________________________
10 One example, though not an exclusive one, is that there is convincing reason to believe
that there will be, in the near future, substantially increased importation of the product atdumped prices.TN/RL/W/143
Page 20
- clarify and improve Article 3.7 to specify in a more detailed manner the factors to be considered in
the determination of the threat of material injury. (TN/RL/W/66)
- clarify subheading (ii) of Article 3.7. (TN/RL/W/110)
- detail the factors that must be considered when determining whether or not protective actions are
necessary to prevent material injury from occurrin g; in particular, identify the potential impact of
further dumped imports on the domestic industry concerned in a manner similar to Article 3.4.
(TN/RL/W/110)
28. Condition of the Domestic Industry in any Threat of Material Injury Analysis
- consider whether the Agreement should be clarified to address investigating authorities'
consideration of the current condition of the domestic industry in an analysis of the threat of material
injury.16 (TN/RL/W/130)
                                                     
16 See Section 135 infra  on the SCM Agreement .TN/RL/W/143
Page 21
29. "Special Care" Requirement in Respect of Determination of Threat of Material Injury
- elaborate on the requirement of “special care” in Article 3.8, so that a clear, specific and
unambiguous benchmark is specified. (TN/RL/W/26)Article 3
Determination of Injury
(…)
3.8 With respect to cases where injury is threatened by dumped imports,
the application of anti-dumping measures shall be considered and decided
with special care.TN/RL/W/143
Page 22
ARTICLE 4 - DEFINITION OF DOMESTIC INDUSTRY
30. Definition of Domestic Industry
- examine the issue of definition of domestic industry. (TN/RL/W/86)
- establish clearer criteria for the definition of the term “major proportion”. (TN/RL/W/10)
(TN/RL/W/66)Article 4
Definition of Domestic Industry
4.1 For the purposes of this Agreement, the term "domestic industry" shall
be interpreted as referring to the domestic producers as a whole of the like
products or to those of them whose collective output of the products constitutes a
major proportion of the total domestic production of those products, except that:
(i) when producers are related11 to the exporters or importers or are
themselves importers of the allegedly dumped product, the term
"domestic industry" may be interpreted as referring to the rest of the
producers;
(ii) in exceptional circumstances the territory of a Member may, for
the production in question, be divided into two or more competitive
markets and the producers within each market may be regarded as a
separate industry if (a) the producers within such market sell all or
almost all of their production of the product in question in that market,
and (b) the demand in that market is not to any substantial degree
supplied by producers of the product in question located elsewhere in the
territory.  In such circumstances, injury may be found to exist even
where a major portion of the total domestic industry is not injured,provided there is a concentration of dumped imports into such an
isolated market and provided further that the dumped imports are causing
injury to the producers of all or almost all of the production within such
market.
(…)_________________________________________________________________
11  For the purpose of this paragraph, producers shall be deemed to be related to exporters
or importers only if (a) one of them directly or indirectly controls the other;  or  (b) both
of them are directly or indirectly controlled by a third person;  or (c) together they
directly or indirectly control a third person , provided that there are grounds for believing
or suspecting that the effect of the relationship is such as to cause the producer concerned
to behave differently from non-related producers.  For the purpose of this paragraph, one
shall be deemed to control another when the former is legally or operationally in aposition to exercise restraint or direction over the latter.TN/RL/W/143
Page 23
- provide more specific parameters as to what minimum percentage of the domestic production can be
considered to be "a major proportion".17 (TN/RL/W/47)
- establish criteria to determine when the authoritie s are allowed, in exceptional cases, not to use the
“domestic producers as a whole of the like products”. (TN/RL/W/10)
- clarify the definition of domestic industry to address the special circumstances raised when domestic
and foreign producers have limited selling seasons.18 (TN/RL/W/72)
- consider whether Article 4.1 of the Anti-Dumping Agreement  should be clarified to specifically
prohibit the practice of limiting the injury analysis solely to those firms which supported the
application.19 (TN/RL/W/98)
- consider whether the Anti-Dumping Agreement  needs to be clarified to ensure that an investigating
authority can satisfy its obligation to obtain reliable and objective data on a domestic industry
containing an extremely large number of producers within the confines of an investigation of limitedduration (issues that may be addressed in such a clarification include reliance by investigating
authorities on information from industry groups or governmental statistical authorities).
20
(TN/RL/W/98)
- consider establishing that the domestic industry shall be taken as a major proportion of the total
domestic production only when it is not possible for the authority to obtain information regarding the"domestic producers as a whole of the like products".
21 (TN/RL/W/104)
- consider whether the asymmetry between the Anti-Dumping  and the SCM Agreement  with respect to
excluding from the domestic industry domestic producers who are themselves importers of a like
product from other countries  should remain (Article 16.1 of the SCM Agreement  provides for this
exclusion, whereas the Anti-Dumping Agreement  does not contain a similar provision).22
(TN/RL/W/104)
                                                     
17 See Section 136 infra  on the SCM Agreement .
18 See Section 136 infra  on the SCM Agreement  and Section 11 supra on the  Anti-Dumping Agreement .
19 See Section 136 infra on the SCM Agreement .
20 See Section 136 infra on the SCM Agreement .
21 See Section 136 infra  on the SCM Agreement .
22 See Section 136 infra  on the SCM Agreement  and Section  68  infra on the  Anti-Dumping Agreement.TN/RL/W/143
Page 24
ARTICLE 5 - INITIATION AND SUBSEQUENT INVESTIGATION
Article 5
Initiation and Subsequent Investigation
5.1 Except as provided for in paragraph 6, an investigation to determine the
existence, degree and effect of any alleged dumping shall be initiated upon a written
application by or on behalf of the domestic industry.
5.2 An application under paragraph 1 shall include evidence of (a) dumping,
(b) injury within the meaning of Article VI of GATT 1994 as interpreted by this
Agreement and (c) a causal link between the dumped imports and the alleged injury.Simple assertion, unsubstantiated by relevant evidence, cannot be considered
sufficient to meet the requirements of this paragraph.  The application shall contain
such information as is reasonably available to the applicant on the following:
(i) the identity of the applicant and a description of the volume and
value of the domestic production of the like product by the applicant.
Where a written application is made on behalf of the domestic industry, the
application shall identify the industry on behalf of which the application ismade by a list of all known domestic producers of the like product (or
associations of domestic producers of the like product) and, to the extent
possible, a description of the volume and value of domestic production of
the like product accounted for by such producers;
(ii) a complete description of the allegedly dumped product, the names
of the country or countries of origin or export in question, the identity of
each known exporter or foreign producer and a list of known persons
importing the product in question;
(iii) information on prices at which the product in question is sold when
destined for consumption in the domestic markets of the country orcountries of origin or export (or, where appropriate, information on the
prices at which the product is sold from the country or countries of origin or
export to a third country or countries, or on the constructed value of the
product) and information on export prices or, where appropriate, on the
prices at which the product is first resold to an independent buyer in theterritory of the importing Member;
(iv) information on the evolution of the volume of the allegedly dumped
imports, the effect of these imports on prices of the like product in the
domestic market and the consequent impact of the imports on the domestic
industry, as demonstrated by relevant factors and indices having a bearingon the state of the domestic industry, such as those listed in paragraphs 2
and 4 of Article 3.
5.3 The authorities shall examine the accuracy and adequacy of the evidence
provided in the application to determine whether there is sufficient evidence to
justify the initiation of an investigation.
(…)TN/RL/W/143
Page 25
31.  Initiation Standards
- clarify the rules/disciplines pertaining to the initiation of investigations.23 (TN/RL/W/1)
(TN/RL/W/86)
 - improve disciplines on initiation of investigations (provide adequate disciplines to protect
developing country textiles firms from unnecessary initiations, particularly as these firms are
generally small or medium-sized). (TN/RL/W/48)
- clarify and improve requirements to initiate an in vestigation, in order to allow for a more meaningful
“examination” of the basis for beginning the investigation. (TN/RL/W/10)
 - clarify the interpretation of the terms “examine”, “accuracy”, and “adequacy” of evidence.
(TN/RL/W/10)
- strengthen the requirements for initiation of an anti-dumping investigation in various areas by, for
example defining the concept of information "reasonably available" in Article 5.2. (TN/RL/W/47)
- amend Article 5 to require that, when examining an application for the initiation of an investigation,
authorities also consider information on factors other than dumping that may be contributing to the
injury being alleged. (TN/RL/W/47)
- consider adding, in addition to the current standards for initiation in Article 5 of the  Anti-dumping
Agreement , a requirement to the effect that clear and sufficient evidence of trade distorting practices
that have led to a situation of injurious dumping should be provided to support the relevant anti-
dumping petitions before the initiation of investigations. (TN/RL/W/129)
                                                     
23 See Section 117 infra  on the SCM  Agreement .TN/RL/W/143
Page 26
32. Back to Back Anti-Dumping Investigations
- require that an investigating authority shall no t initiate an anti-dumping investigation where an
investigation on the same product or a broader category of another product which included the
product now under consideration from the same Member resulted in negative finding within 365 days
prior to the filing of the petition seeking initiation of a new investigation. (TN/RLW/26)
- add a new paragraph to Article 5 of the Anti-Dumping Agreement : Investigating authorities shall not
initiate an anti-dumping investigation where an investigation of the same product from the same
Member resulted in a negative finding within the 365 days prior to the filing of the application.
(TN/RL/W/66)
33. Standing Rules
- examine the issue of standing. (TN/RL/W/86)
- establish that applications should be supported by at least more than 50 per cent of the total domestic
production. (TN/RL/W/10)Article 5
Initiation and Subsequent Investigation
(…)
5.4 An investigation shall not be initiated pursuant to paragraph 1 unless the
authorities have determined, on the basis of an examination of the degree of
support for, or opposition to, the application expressed13 by domestic producers of
the like product, that the application has been made by or on behalf of the
domestic industry.14 The application shall be considered to have been made "by or
on behalf of the domestic industry" if it is supported by those domestic producerswhose collective output constitutes more than 50 per cent of the total production of
the like product produced by that portion of the domestic industry expressing
either support for or opposition to the appl ication.  However, no investigation shall
be initiated when domestic producers expressly supporting the application account
for less than 25 per cent of total production of the like product produced by thedomestic industry.
(…)
__________________________________________________________________
13 In the case of fragmented industries involving an exceptionally large number of
producers, authorities may determine support and opposition by using statistically validsampling techniques.
14 Members are aware that in the territory of certain Members employees of domestic
producers of the like product or representatives of those employees may make or supportan application for an investigation under paragraph 1.TN/RL/W/143
Page 27
-  require that legally sufficient "support" include co mplete data relevant to assessment of injury, and
the causal relationship between that injury and imports. (TN/RL/W/10)
- require investigating authorities to conduct an "objective" assessment of the degree of industry
support for an application and to refrain from taking any action that would have a foreseeable effect
on the outcome of such a determination. (TN/RL/W/47)
- discuss the standing requirement for the initiati on of an investigation to determine whether the
concept of "standing" is appropriately defined to ensure that domestic producers representing a
relatively small proportion of the domestic production of like products cannot successfully apply for
an investigation.24 (TN/RL/W/47)
- consider requiring that, in cases where an application is made on behalf of a domestic industry by
one or more industry associations, that the members of the industry association(s) be identified in the
application, with a statement of support for the application.25 (TN/RL/W/47)
34. Domestic Industry Consisting of Small-Scale or “Unorganised” Sector Producers
- clarify that footnote 13, which refers to the use of sampling techniques in the case of fragmented
industries, also applies to the 25 per cent requirement in the last sentence of Article 5.4 (support for
application). (TN/RL/W/26)
                                                     
24 See Section 119 infra  on the SCM Agreement .
25 See Section 119 infra  on the SCM Agreement .TN/RL/W/143
Page 28
35. Initiation and Publicization of the Application
- make clear how the obligation to notify the Govern ment of the exporting Member can be reconciled
with the obligation to avoid publicizing the application concerned.26 (TN/RL/W/132)
                                                     
26 See Section 120 infra  on the SCM Agreement .Article 5
Initiation and Subsequent Investigation
(…)5.5 The authorities shall avoid, unless a decision has been made to initiate an
investigation, any publicizing of the applica tion for the initiation of an investigation.
However, after receipt of a properly documented application and before proceeding to
initiate an investigation, the authorities shall notify the government of the exporting
Member concerned.
(…)TN/RL/W/143
Page 29
36. Ex Officio  Initiation
- analyze the appropriateness of establishing guidelines for the definition of a "special" situation
justifying the ex officio  initiation of an investigation. (TN/RL/W/81)Article 5
Initiation and Subsequent Investigation
(…)
5.6 If, in special circumstances, the authorities concerned decide to initiate an
investigation without having received a written application by or on behalf of a
domestic industry for the initiation of such investigation, they shall proceed only if
they have sufficient evidence of dumping, injury and a causal link, as described inparagraph 2, to justify the initiation of an investigation.
(…)TN/RL/W/143
Page 30
37. Thresholds
- raise existing de minimis  dumping margin of 2 per cent of export price below which no anti-
dumping duty can be imposed  to 5 per cent for imports from developing countries. (TN/RL/W/4)
(TN/RL/W/66)
 - ensure application of the de minimis  dumping margin of 5% in refund and review cases.
(TN/RL/W/4)27
- redefine 2 per cent de minimis  dumping margin level to reflect the high degree of variance and
uncertainty resulting from crude methodologies. (TN/RL/W/6)
- discuss whether the current 3 per cent negligible volume threshold is sufficient to justify injury when
the volume of total import itself is small. (TN/RL/W/6)
- consider the de minimis  issue, with a view to making any adjustments to this provision applicable to
imports from all Members. (TN/RL/W/47)
- increase the threshold volume of dumped imports wh ich shall be regarded as negligible from 3 to 5
per cent for imports from developing countries. (TN/RL/W/4) (TN/RL/W/66)
- delete the stipulation that anti-dumping action can still be taken even if the volume of imports is
below the threshold of 3 per cent, provided countries which individually account for less than the
threshold volume, collectively account for more than 7 per cent of the imports. (TN/RL/W/4)
                                                     
27 See Section 58 infra .Article 5
Initiation and Subsequent Investigation
(…)
5.8 An application under paragraph 1 shall be rejected and an investigation
shall be terminated promptly as soon as the authorities concerned are satisfied
that there is not sufficient evidence of either dumping or of injury to justify
proceeding with the case.  There shall be immediate termination in cases where
the authorities determine that the margin of dumping is  de minimis , or that the
volume of dumped imports, actual or potential, or the injury, is negligible.  The
margin of dumping shall be considered to be de minimis  if this margin is less
than 2 per cent, expressed as a percentage of the export price.  The volume of
dumped imports shall normally be regarded as negligible if the volume of
dumped imports from a particular country is found to account for less than
3 per cent of imports  of the like product in the importing Member, unless
countries which individually account for less than 3 per cent of the imports of thelike product in the importing Member collectively account for more than 7 per
cent of imports of the like product in the importing Member.
(…)TN/RL/W/143
Page 31
- delete the provision that measures can still be taken if the imports from the countries under the
negligible volume collectively account for more than 7 per cent. (TN/RL/W/66)
- revisit the role of de minimis  in duty collection process. (TN/RL/W/6)
- clarify Article 5.8 to determine whether imports of all origins can be cumulated whether or not they
are from WTO Member countries. (TN/RL/W/132)
38. Shorter Periods for Investigations
- discuss whether the periods set out in Article 5.10 of the Agreement on Anti-Dumping could be
significantly shortened (this discussion would also have to reflect that shorter deadlines imposegreater discipline on investigating authorities and interested parties).
28 (TN/RL/W/138)
                                                     
28 This proposal was submitted under the general title of "Proposals on Cost Saving in Anti-Dumping
Proceedings" (TN/RL/W/ 138). See also Section 69 infra .Article 5
Initiation and Subsequent Investigation
(…)
5.10 Investigations shall, except in special circumstances, be concluded within one year, and in
no case more than 18 months, after their initiation.
(…)TN/RL/W/143
Page 32
ARTICLE 6 - EVIDENCE
39. Hearing and Meetings
- discuss whether further enhancement of Article 6.2 is necessary (currently the Agreement does not
provide specific guidelines for implementing this provision or address the role of the administering
authority). (TN/RL/W/35)
- discuss whether administering authorities should be required to provide notice and a summary of all
meetings that they have with outside parties when the discussions pertain to proceedings under the
Agreements. (TN/RL/W/35)
- include a requirement in Article 6 similar to Article 3 of the Agreement on Safeguards , which
requires a public hearing or other appropriate means by which interested parties can present evidence
and views, including the opportunity to respond to the submissions of other parties. (TN/RL/W/47)Article 6
Evidence
(…)
6.2 Throughout the anti-dumping investigation all interested parties shall
have a full opportunity for the defence of their interests.  To this end, theauthorities shall, on request, provide opportunities for all interested parties to
meet those parties with adverse interests, so that opposing views may be
presented and rebuttal arguments offered.  Provision of such opportunities must
take account of the need to preserve confidentiality and of the convenience to the
parties.  There shall be no obligation on any party to attend a meeting, and failureto do so shall not be prejudicial to that party's case.   Interested parties shall also
have the right, on justification, to present other information orally.
(…)TN/RL/W/143
Page 33
40. Availability of Relevant Information from National Authorities
- enhance provisions concerning timely information and feedback (currently, there is no definition of
what timely is and no specific guidance for national authorities).29 (TN/RL/W/35)
- give a definition of the term "timely", in order to clarify the period of time involved and establish a
fixed interval, so as to guarantee due process for the parties involved and transparency throughout the
proceeding, thereby avoiding different interpretations of the same provision by the competent
authorities of each Member.30 (TN/RL/W/132)
- discuss the issue of providing access to non-confidential information; for example, consider ways in
which interested parties could be granted access to non-confidential information as soon as it is
submitted to national authorities, regardless of whether the national authorities ultimately rely upon
the information for purposes of their determination.31 (TN/RL/W/35)
41. Maintenance of a Public Record
- evaluate how a mechanism for providing access to non-confidential information used by national
authorities in an investigation could operate (e.g. maintaining a public record of all non-confidential
information submitted by the parties and all memoranda adopted or approved by the pertinent
authority that explain the factual or legal bases fo r its determination or provide pertinent findings and
conclusions in support of that determination).32 (TN/RL/W/35)
                                                     
29 See Section 121 infra  on the SCM Agreement .
30 See Section 121 infra  on the SCM Agreement
31 See Section 121 infra  on the SCM Agreement .
32 See Section 122 infra  on the SCM Agreement .Article 6
Evidence
(…)
6.4 The authorities shall whenever practicable provide timely opportunities
for all interested parties to see all information that is relevant to the
presentation of their cases, that is not confidential as defined in paragraph 5,
and that is used by the authorities in an anti-dumping investigation, and to
prepare presentations on the basis of this information.
(…)TN/RL/W/143
Page 34
42. Treatment of Confidential and Non-Confidential Information
- reflect on ways to improve disclosure and access to non-confidential documents33. (TN/RL/W/13)
- examine the issue of treatment of confidential  and non-confidential information. (TN/RL/W/86)
- discuss the nature and treatment of confidential information. (TN/RL/W/81)- discuss the issue of domestic legislation of countries on the different types of information.
(TN/RL/W/81)
- discuss criteria for the preparation of non-confidential summaries. (TN/RL/W/81)
- provide clear rules as to how non-confidential summaries should be prepared; give guidance with
regard to all areas where non-confidential summaries have to be submitted including for transaction-by-transaction listings and information on cost of production; provide for the possibility of a review of
such summary, e.g. by a "Permanent Group of Experts" type of body serviced by the WTO
Secretariat; ask Members to establish domestic rules allowing for independent review of non-
confidential summaries upon request by an interested party; built upon Article 13 of the Anti-
Dumping Agreement  as a basis for this option.
34 (TN/RL/W/138)
-  establish a time-limit for a party to supply a non-confidential summary. (TN/RL/W/44)
                                                     
33 See also  Section 69 infra (TN/RL/W/138).
34 This proposal was submitted under the general title of "Proposals on Cost Saving in Anti-Dumping
Proceedings" (TN/RL/W/ 138). See also Section 69 infra.Article 6
Evidence
(…)
6.5 Any information which is by nature confidential (for example, because
its disclosure would be of significant competitive advantage to a competitor or
because its disclosure would have a significantly adverse effect upon a person
supplying the information or upon a person from whom that person acquired the
information), or which is provided on a confidential basis by parties to aninvestigation shall, upon good cause shown, be treated as such by the authorities.
Such information shall not be disclosed without specific permission of the party
submitting it.
17
(…)
______________________________________________________________
17 Members are aware that in the territory of certain Members disclosure pursuant to a
narrowly-drawn protective order may be required.TN/RL/W/143
Page 35
- discuss whether each Member should have in place a system to allow access for appropriate persons
to confidential information; such a system must in corporate appropriate measures to ensure the proper
protection of confidential information.35 (TN/RL/W/35)
- consider establishing requirements for Members to maintain specific procedures to protect
confidential information from unauthorised disclosure.36 (TN/RL/W/35)
- consider how access to information might be im proved to ensure that parties have a proper
understanding of the matter (this might include greater recourse to disclosure of information under
protective order with appropriate penalties to discourage the misuse of such information).
(TN/RL/W/47)
- discuss whether a distinction should be made in Article 6.5 between information which is considered
to be by nature confidential and information which is provided on a confidential basis, or whether the
claim should be for information which is confidential. (TN/RL/W/44)
-  discuss the possibility of including an illustrative list setting out what information can be considered
confidential. For example, information could be considered confidential if its disclosure would be
likely inter alia :
• To be of significant competitive advantage to a competitor;
• To have a significant adverse effect upon the party who submitted the information, or the party
from whom the information was acquired by the party who submitted the information;
• To have significant adverse effect upon any party to whom the information relates;
• To prejudice the commercial position of a person who supplied or who is the subject of the
information;
• 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;
• To effect the maintenance of legal privilege. (TN/RL/W/44)
-  alternatively, discuss the possibility of identifying matters, a definition, or type of information,
which would constitute, or be considered to be, "non-confidential" information.  (TN/RL/W/44)
-  discuss the introduction of a statement in the Anti-dumping Agreement Article 6.5 that information
that is in the public domain cannot be considered to be confidential. (TN/RL/W/44)
-  define the meaning of the term " upon good cause being shown". (TN/RL/W/44)
-  define the meaning of the expression "demonstrated to their satisfaction from appropriate sources
that the information is correct" in Article 6.5.2. (TN/RL/W/44)
                                                     
35 See Section 123 infra  on the SCM Agreement .
36 See Section 123 infra  on the SCM Agreement .TN/RL/W/143
Page 36
-  give special consideration in the case of claims of material injury for the use of indices or ranges as
being the appropriate/preferred method of providin g a non-confidential summary of such information;
consider whether this should be an option for all numeric data, for example responses provided in
exporter questionnaires. (TN/RL/W/44)TN/RL/W/143
Page 37
43. Conduct of Verifications
- discuss steps to make verification procedures clearer (e.g. authorities could provide exporting
Members and their firms with detailed outlines prior to verification specifying what topics will be
covered and what type of supporting documentation will be required; a report on the verificationfindings should be issued to all interested parties as soon as possible).
37 (TN/RL/W/35)
- explore whether and to what extent standard procedures for on-spot verifications would help (the
provisions of Annex I of the Anti-Dumping Agreement  are a good starting-point for further
clarifications in this respect).38 (TN/RL/W/138)
                                                     
37 See Section 124 infra on the SCM Agreement.
38 This proposal was submitted under the general title of "Proposals on Cost Saving in Anti-Dumping
Proceedings" (TN/RL/W/ 138). See also Section 69 infra .Article 6
Evidence
(…)
6.7 In order to verify information provided or to obtain further details, the
authorities may carry out investigations in the territory of other Members as
required, provided they obtain the agreement of the firms concerned and
notify the representatives of the government of the Member in question, andunless that Member objects to the investigation.  The procedures described in
Annex I shall apply to investigations carried out in the territory of other
Members.  Subject to the requirement to protect confidential information, the
authorities shall make the results of any such investigations available, or shall
provide disclosure thereof pursuant to paragraph 9, to the firms to which theypertain and may make such results available to the applicants.
(…)TN/RL/W/143
Page 38
Article 6
Evidence
6.1 All interested parties in an anti-dumping investigation shall be given
notice of the information which the authorities require and ample opportunity
to present in writing all evidence which th ey consider relevant in respect of the
investigation in question.
6.1.1 Exporters or foreign producers receiving questionnaires used in an
anti-dumping  investigation shall be given at least 30 days for reply.15 Due
consideration should be  given to any request for an extension of the 30-day
period and, upon cause shown, such an extension should be granted whenever
practicable.
6.1.2 Subject to the requirement to protect confidential information,
evidence presented in  writing by one interested party shall be made
available promptly to other intere sted parties participating in the
investigation.
6.1.3 As soon as an investigation has been initiated, the authorities
shall provide the full text of the written application received under
paragraph 1 of Article 5 to the known exporters16 and to the authorities
of the exporting Member and shall make it available, upon request, to
other interested parties involved.  Due regard shall be paid to the
requirement for the protection of confidential information, as providedfor in paragraph 5.
6.2 Throughout the anti-dumping investigation all interested parties shall
have a full opportunity for the defence of their interests.  To this end, the
authorities shall, on request, provide opportunities for all interested parties to
meet those parties with adverse interests, so that opposing views may bepresented and rebuttal arguments offered.  Provision of such opportunities must
take account of the need to preserve confidentiality and of the convenience to
the parties.  There shall be no obligation on any party to attend a meeting, and
failure to do so shall not be prejudicial to that party's case.   Interested parties
shall also have the right, on justification, to present other information orally.
(…)
6.6 Except in circumstances provided for in paragraph 8, the authorities
shall during the course of an investigation satisfy themselves as to the accuracy
of the information supplied by interested parties upon which their findings are
based.
(…)
_______________________________________________________________
15 As a general rule, the time-limit for exporters shall be counted from the date of
receipt of the questionnaire, which for this purpose shall be deemed to have been
received one week from the date on which it was sent to the respondent or transmitted
to the appropriate diplomatic representative of the exporting Member or, in the case ofa separate customs territory Member of the WTO, an official representative of theexporting territory.TN/RL/W/143
Page 39
ANNEX II
BEST INFORMATION AVAILABLE IN TERMS OF PARAGRAPH 8 OF ARTICLE 6
1. As soon as possible after the initiation of the investigation, the
investigating authorities should specify in detail the information required from
any interested party, and the manner in which that information should be
structured by the interested party in its response.  The authorities should alsoensure that the party is aware that if information is not supplied within a
reasonable time, the authorities will be free to make determinations on the basis
of the facts available, including those contained in the application for the
initiation of the investigation by the domestic industry.
(…)3. All information which is verifiable, which is appropriately submitted so
that it can be used in the investigation without undue difficulties, which is
supplied in a timely fashion, and, where applicable, which is supplied in a
medium or computer language requested by the authorities, should be taken into
account when determinations are made.  If a party does not respond in thepreferred medium or computer language but the authorities find that the
circumstances set out in paragraph 2 have been satisfied, the failure to respond in
the preferred medium or computer language should not be considered to
significantly impede the investigation.
(…)6.8 In cases in which any interested party refuses access to, or otherwise
does not provide, necessary information within a reasonable period or
significantly impedes the investigation, preliminary and final determinations,affirmative or negative, may be made on the basis of the facts available.  The
provisions of Annex II shall be observed in the application of this paragraph.
6.9 The authorities shall, before a final determination is made, inform all
interested parties of the essential facts under consideration which form the basis
for the decision whether to apply definitive measures.  Such disclosure shouldtake place in sufficient time for the parties to defend their interests.
(…)TN/RL/W/143
Page 40
44. Facts Available 39
- elaborate more stringent rules to provide more clarity to discipline the excessive use of "facts
available". (TN/RL/W/6)
- establish objective criteria for determining when  the implementing authority considers that the best
information available should be used. (TN/RL/W/81)
- examine criteria that could be used to determine whether or not to grant an extension of time for
information and before facts available can be used (the Working Group on Implementation's criteria
could form a basis of criteria in the Anti-Dumping Agreement ). (TN/RL/W/86)
- specify the circumstances in which an investigatin g authority may resort to total facts available. In
other situations the investigating authority shall be required to take into consideration all information
which meets the criteria of Annex II:3, although so me other information may not meet this criteria.
(TN/RL/W/26)
- amend the current text of Article 6.8 to explicitly state that “facts available” are to be used only for
the purpose of substituting missing or rejected information; examine how the concept of “significant
impediment”, which may be a cause of misinterpretation due to its ambiguity, has been applied, and
thus whether it is appropriate to maintain this concept in the Agreement, and instead to add the
concept of “refusal of verification” to clarify that facts available can be used also in a situation where
an interested party refuses verification of necessary information. (TN/RL/W/93)
- amend Annex II.1 to provide that authorities may not resort to “facts available” in an investigation
or review unless the authorities  have made all reasonable efforts to obtain necessary information from
respondents; to fulfill the reasonable effort requ irement, the authority must notify the respondent in
detail of information which was insufficient in the response to the authorities’ questionnaire; the
authority must also  permit the respondent to submit the required information within a reasonable
                                                     
39 See Section 125 infra  on the SCM Agreement .7. If the authorities have to base their findings, including those with respect
to normal value, on  information from a secondary source, including theinformation supplied in the application fo r the initiation of the investigation, they
should do so with special circumspection.  In such cases, the authorities should,
where practicable, check the information from other independent sources at their
disposal, such as published price lists, official import statistics and customs
returns, and from the information obtained from other interested parties during
the investigation.  It is clear, however, that if an interested party does not
cooperate and thus relevant information is being withheld from the authorities,
this situation could lead to a result which is less favourable to the party than if
the party did cooperate.TN/RL/W/143
Page 41
period of time; in this connection, “a reasonable period of time” must be determined on a case-by-case
basis in the light of the specific circumstances of each investigation. (TN/RL/W/93)
- amend Annex II.3 to make it mandatory for authorit ies to use any and all submitted information that
is verifiable, germane to the investigation and not proven to be inaccurate, as well as complying with
the other requirements set out in Annex II. 3. (TN/RL/W/93)
- amend Annex II.7 to provide that authorities shall choose, whenever authorities resort to facts
available in accordance with the Anti-Dumping Agreement , information from a secondary source that
properly represents the prevailing state of the industry or the relevant market with respect to the
missing or rejected information; the information shall be chosen, where practicable, based on an
objective examination of all information obtained by authorities during the course of an
investigation/review in light of the requ irements set out in Annex II.7. (TN/RL/W/93)
- (in connection with above) amend Article 6.6 so that the distinction between the authority’s
obligation with respect to an “Article 6.8 situati on” and the other situation is eliminated; for this
purpose, delete the exception clause at the beginning of Article 6.6 and the phrase “supplied by
interested parties”. (TN/RL/W/93)
- improve the last sentence of Annex II.7 by clarifying that a party shall be regarded as being
cooperative, inter alia , if the party provided a substantial portion of the entire information requested
by authorities and substantially all of that information could be verified, or if the party made
reasonable efforts to submit the requested information in light of its ability to submit the information
and its ability to fulfill the instructions provided by the authorities. (TN/RL/W/93)
-  amend Annex II.6 to provide that when the authorities resort to “facts available”, they must either in
the preliminary determination or in the disclosure pursuant to Article 6.9, provide a sufficientexplanation of the reasons why the submitted information has been totally or partially rejected and
specifically identify the information that the au thorities intend to substitute for the rejected
information; due regard must be given to confid ential information relating to the disclosure in
accordance with Articles 6.4 and 6.5. (TN/RL/W/93)
45. Disclosure / Evidence
- consider whether the Agreement should be clarified as to what constitutes "sufficient time for parties
to defend their interests" as well as to what constitutes adequate disclosure of the "essential facts" in
the context of Article 6.9 of the Agreement.
40 (TN/RL/W/98)
-  address the lack of indication of the period of time necessary for the parties to make their comments
in defence of their interests and the lack of an indicative list of the elements which the communication
should contain, with a view to standardizing the crit eria and avoiding significant differences between
one investigation and another, depending on the Member concerned.41 (TN/RL/W/132)
- clarify rules on disclosure (Art. 6.9 of the Anti-Dumping Agreement ); any rules on disclosure should
aim at defining the minimum information to be given.42 (TN/RL/W/138)
                                                     
40 See Section 126 infra  on the SCM Agreement .
41 See Section 126 infra  on the SCM Agreement .
42 This proposal was submitted under the general title of "Proposals on Cost Saving in Anti-Dumping
Proceedings" (TN/RL/W/ 138). See also Section 69 infra .TN/RL/W/143
Page 42
- consider whether a requirement might be warrante d for a disclosure meeting for the authorities to
review with the interested parties, upon request, how the dumping margins and countervailing duty
rates were calculated. (TN/RL/W/130)43
- consider improving the existing provisions on evidence (i.e. Article 6) by providing exporters orproducers subject to investigation with an additional opportunity for defence through presentingevidence that:
(a) they are not earning above-market profit margins in their home market; or
(b) there does not exist any home-market sanctuaries that enable them to enjoy artificial advantages
(e.g. evidence of open markets, like, free en try to domestic markets, low tariffs, etc.).
(TN/RL/W/129)
                                                     
43 See Section 126 infra  on the SCM Agreement .TN/RL/W/143
Page 43
46. Treatment in Case of a Large Number of Exporters, Producers, Importers or Types of
Products
- elaborate clear and precise criteria for the application of Article 6.10, particularly to clarify terms
like "reasonable number" or "largest percentage of the volume … which can reasonably be
investigated". (TN/RL/W/29)
- ensure that relevant criteria of representativeness are established. (TN/RL/W/29)
- qualify the situations where samples may be used. (TN/RL/W/29)
47. Favoured Exporter Treatment
- consider whether changes to the Agreement should be made to specifically prohibit the practice of
excluding by name, ab initio , certain favoured exporters from any investigation and from coverage of
any eventual anti-dumping measure, even though they produce merchandise like that which is underinvestigation.
44 (TN/RL/W/98)
48. Procedural Issues / Sampling
- clarify the precise manner by which a statistically valid sample can be developed (e.g. what are the
relevant characteristics of the underlying population, and what is the relationship between theavailable sampling units and the parameter value to be estimated?).
45  (TN/RL/W/78)
                                                     
44 See Section 145 infra  on the SCM Agreement .
45 See Section 164 infra  on the SCM Agreement  and Section 69 infra  on the Anti-Dumping Agreement .Article 6
Evidence
(…)
6.10 The authorities shall, as a rule, determine an individual margin of
dumping for each known exporter or producer concerned of the product under
investigation.  In cases where the number of exporters, producers, importers or
types of products involved is so large as to make such a determination
impracticable, the authorities may limit their examination either to a reasonablenumber of interested parties or products by using samples which are
statistically valid on the basis of information available to the authorities at the
time of the selection, or to the largest percentage of the volume of the exports
from the country in question which can reasonably be investigated.
(…)TN/RL/W/143
Page 44
49. Interested Parties
- consider taking industrial users and consumer organizations into account in the definition of
"interested parties" in the Anti-Dumping Agreement , with a view to securing them the opportunity, if
they so wish, to fully participate in anti-dumping investigations since their initiation.46
(TN/RL/W/104)
                                                     
46 See Section 127 infra on the SCM Agreement and Section 72  infra on the  Anti-Dumping Agreement .Article 6
Evidence
(…)
6.11 For the purposes of this Agreement, "interested parties" shall include:
(i) an exporter or foreign producer or the importer of a product subject
to investigation, or a trade or business association a majority of the members of
which are producers, exporters or importers of such product;
(ii) the government of the exporting Member;  and(iii) a producer of the like product in the importing Member or a trade
and business  association a majority of the members of which produce the like
product in the territory of the importing Member.
This list shall not preclude Members from allowing domestic or foreign parties other
than those mentioned above to be included as interested parties.
(…)TN/RL/W/143
Page 45
ARTICLE 7 – PROVISIONAL MEASURES
SIONAL MEASURES
50. Provisional Measures
- consider harmonizing the provisions of the Anti-Dumping  and SCM Agreement  regarding the
application of provisional measures, especially the prohibition of collecting provisionalduties.
47(TN/RL/W/104)
                                                     
47 See Section 137 infra  on the SCM Agreement and Section 68 infra  on the  Anti-Dumping Agreement .Article 7
Provisional Measures
7.1 Provisional measures may be applied only if:
(i) an investigation has been initiated in accordance with the
provisions of Article 5, a public notice has been given to that effect andinterested parties have been given adequate opportunities to submit information
and make comments;
(ii) a preliminary affirmative determination has been made of
dumping and consequent injury to a domestic industry;  and
(iii) the authorities concerned judge such measures necessary to
prevent injury being caused during the investigation.
7.2 Provisional measures may take the form of a provisional duty or,
preferably, a security - by cash deposit or bond - equal to the amount of the
anti-dumping duty provisionally estimated, being not greater than the
provisionally estimated margin of dumping.  Withholding of appraisement is an
appropriate provisional measure, provided that the normal duty and the estimated
amount of the anti-dumping duty be indicated and as long as the withholding ofappraisement is subject to the same conditions as other provisional measures.
7.3 Provisional measures shall not be applied sooner than 60 days from the
date of initiation of the investigation.
7.4 The application of provisional measures shall be limited to as short a
period as possible, not exceeding four months or, on decision of the authoritiesconcerned, upon request by exporters representing a significant percentage of the
trade involved, to a period not exceeding six months.  When authorities, in the
course of an investigation, examine whether a duty lower than the margin of
dumping would be sufficient to remove injury, these periods may be six and nine
months, respectively.
7.5 The relevant provisions of Article 9 shall be followed in the application
of provisional measures.TN/RL/W/143
Page 46
ARTICLE 8 - PRICE UNDERTAKINGS
51. Price Undertakings
- define what should constitute “satisfa ctory voluntary undertakings”. (TN/RL/W/10)
- elaborate Articles 8.1 and 8.3 to limit the discretion of investigating authorities in rejecting proposals
for price undertakings, such as the expressions of "satisfactory voluntary undertakings" and "reasons
of general policy". (TN/RL/W/66)
- agree on more specific provisions relating to price undertakings, seeking answers to some questions
including the following:
• How to determine the undertaking 'price' to be given in a price undertaking? [Article 8.1]Article 8
Price Undertakings
8.1 Proceedings may19 be suspended or terminated without the imposition
of provisional measures or anti-dumping duties upon receipt of satisfactory
voluntary undertakings from any exporter to revise its prices or to cease exports
to the area in question at dumped prices so that the authorities are satisfied that
the injurious effect of the dumping is eliminated.  Price increases under such
undertakings shall not be higher than necessary to eliminate the margin ofdumping.  It is desirable that the price increases be less than the margin of
dumping if such increases would be adequate to remove the injury to the
domestic industry.
8.2 Price undertakings shall not be sought or accepted from exporters
unless the authorities of the importing Member have made a preliminaryaffirmative determination of dumping and injury caused by such dumping.
8.3 Undertakings offered need not be accepted if the authorities consider
their acceptance impractical, for example, if the number of actual or potential
exporters is too great, or for other reasons, including reasons of general policy.
Should the case arise and where practicable, the authorities shall provide to theexporter the reasons which have led them to consider acceptance of an
undertaking as inappropriate, and shall, to the extent possible, give the exporter
an opportunity to make comments thereon.
(…)
________________________________________________________________
19 The word "may" shall not be interpreted to allow the simultaneous continuation of
proceedings with the implementation of pr ice undertakings except as provided in
paragraph 4.TN/RL/W/143
Page 47
• What shall be treated as 'satisfactory' and what shall be 'unsatisfactory' price undertaking? [Article
8.1]
• Relevant conditions for non-acceptance of price undertakings shall be more specifically clarified
[Article 8.3].  (TN/RL/W/26)
- define “reasons of general policy” in the context of refusal by authorities of  proposals for price
undertakings  in Article 8.3. (TN/RL/W/10)
- confirm that price undertakings need only elimin ate injurious effects of dumping. (TN/RL/W/10)
- take into account the needs of developing countries. (TN/RL/W/10)
- consider ways to provide appropriate methodologies for the calculation of a duty that is less than the
full margin of dumping but which is adequate to remove the injury to the domestic industry.48
(TN/RL/W/47)
- provide that developed countries shall accept price undertaking proposals from developing country
exporters as long as the undertaking offsets the dumping margin determined; even in cases where the
actual or potential exporters are great, the investigating authorities shall accept such proposals fromthose cooperating exporters whose share individually in the total exports from the targeted country
where the exporters are located to the importing developed country Member is more than 10%.
(TN/RL/W/66)
- establish inappropriateness of a level of price undertaking that implies a price increase higher than
necessary to remove injury. (TN/RL/W/29)
- give an outline of the procedure to be followed in cases where only some exporters submit price
undertakings, and of the treatment applicable to the others. (TN/RL/W/81)
- clarify that the authorities in the importing country cannot require all exporters, the majority of
exporters or a specific proportion of the exporters to offer price undertakings as a condition for the
acceptance of price undertaking offers from one or a limited number of exporters. (TN/RL/W/118)
- require authorities to provide, in a public notice, the criteria and reasons for non-acceptance of a
price undertaking offer, and to permit, before a final decision is taken and within the time-limits of the
investigation, comments from the exporter offering the price undertaking. (TN/RL/W/118)
- minimize the wide level of discretion and ambiguity contained in Article 8.3; this include, inter alia ,
to clarify that the existence of a large number of exporters in itself is not a valid reason for rejection,except in clearly defined exceptional circumstances, including when compliance cannot be monitored.
(TN/RL/W/118)
- clarify that price undertaking offers shall be accepted if they offset injury caused by dumping and
comply with the procedures and other conditions  necessary for the implementation of the price
undertaking. (TN/RL/W/118)
- clarify that authorities, prior to the preliminar y determination of injury and dumping, shall inform
exporters of their right to offer price undertakings as well as make known to them the applicable rules
and procedures to be followed in requesting consideration of price undertakings, including any
procedural deadlines. (TN/RL/W/118)
                                                     
48 See Section 52 infra .TN/RL/W/143
Page 48
- clarify that exporters have the right to request an  adjustment of the price undertaking if there are
changes in circumstances, including situation where domestic market price falls below the level
stipulated in the price undertaking. (TN/RL/W/118)
- clarify that price undertakings should be implemented in good faith and in a predictable manner, and
that they should not be terminated merely because of minor non-compliance of proceduralrequirements, provided the substantive commitments are respected. (TN/RL/W/118)TN/RL/W/143
Page 49
ARTICLE 9 - IMPOSITION AND COLLECTION OF ANTI-DUMPING DUTIES
52. Lesser duty
- make the lesser duty rule mandatory while imposing an anti-dumping duty against imports from a
developing-country  Member by any develope d-country Member. (TN/RL/W/4) (TN/RL/W/66)
- make the lesser duty rule mandatory when investigating dumping of imports from a developing
country. (TN/RL/W7)
- consider the mandatory application of the lesser duty rule by developed Members in anti-dumping
proceedings concerning devel oping Members. (TN/RL/W/110)
- discuss a mandatory lesser duty rule. (TN/RL/W/13)- consider ways to provide appropriate methodologies for the calculation of a duty that is less than the
full margin of dumping but which is adequate to remove the injury to the domestic industry.
49
(TN/RL/W/47)
- discuss the appropriateness of applying anti-dumping duties that are higher than necessary to
counteract injury. (TN/RL/W/6)
- discuss the appropriateness of imposing and collecting duties when a de minimis  margin is
determined for the collection of duty. (TN/RL/W/7)
- discuss whether there should be a distinction between mandatory consideration and mandatory
application of the lesser duty rule. (TN/RL/W/86)
- discuss whether there should be some distinction in the application or consideration of the lesser
duty rule depending on the country of export. (TN/RL/W/86)
- discuss whether there are situations when the lesser duty rule would be inappropriate, e.g., where
systematic and persistent dumping in a particular product has disrupted world markets. (TN/RL/W/86)
- amend Articles 9.1, 9.3 and 9.450 to provide for the mandatory application of the lesser duty rule.
(TN/RL/W/119) 
                                                     
49 See Section 51 supra .Article 9
Imposition and Collection of Anti-Dumping Duties
9.1 The decision whether or not to impose an anti-dumping duty in cases
where all requirements for the imposition have been fulfilled, and the decision
whether the amount of the anti-dumping duty to be imposed shall be the full
margin of dumping or less, are decisions to be made by the authorities of the
importing Member.  It is desirable that the imposition be permissive in theterritory of all Members, and that the duty be less than the margin if such
lesser duty would be adequate to remove the injury to the domestic industry.
(…)TN/RL/W/143
Page 50
- add a new sub-article after the current Article 9.1 to explain that: (i) the calculation of the lesser duty
level must be based on a methodology which will be provided in Annex III; and (ii) the lesser duty
level shall only apply if it is lower than the margin of dumping. (TN/RL/W/119)
- add a new Annex III which provides that the lesser duty level shall be calculated in accordance with
the following methods and that the calculation of th e lesser duty level shall take full account of the
obligation set out in Article 3.5 to separate the injurious effects of other factors from the dumped
imports, so as not to attribute these effects to the lesser duty level:
• price undercutting method: the lesser duty level is calculated as the difference between the price,
normally at the ex-factory level, of the domestic like product and the CIF landed price of thedumped imports; with appropriate adjustment based on differences affecting price comparability
between the domestic like product and the imported product including market characteristics
affecting customers' purchase decision between them in the market of the importing Member;
• representative cost plus profit method: the lesser duty level is calculated as the difference between
the representative per unit cost of production, selling, general and administrative costs ("SG&A"),
and profit of the domestic like product; and the CIF landed price of the dumped imports; with
appropriate adjustment based on differences affecting the price comparability between the
domestic like product and the imported product including market characteristics affecting
customers' purchase decision between them in the market of the importing Member;
• non-dumped import price method: the lesser duty level is calculated as the difference between the
CIF landed price of the non-dumped imports of the like products and the CIF landed price of the
dumped imports. (TN/RL/W/119)
- ensure in Annex III that Article 2.4, including the prohibition of zeroing, applies mutatis mutandis  to
the calculation of the lesser duty level. (TN/RL/W/119)
                                                                                                                                                                    
50 See text of Articles 9.3 and 9.4 in the following pages.TN/RL/W/143
Page 51
53. Exclusion of Companies
- consider whether the Agreement needs to be clar ified specifically to ensure that any examined
exporter or producer found not to be dumping during an investigation may not be covered by any
measure which results from that investigation.51 (TN/RL/W/98)
                                                     
51 See Section 143 infra on the  SCM Agreement.Article 9
Imposition and Collection of Anti-Dumping Duties
(…)
9.2 When an anti-dumping duty is imposed in respect of any product, such
anti-dumping duty shall be collected in the appropriate amounts in each case, on a
non-discriminatory basis on imports of such product from all sources found to be
dumped and causing injury, except as to imports from those sources from which
price undertakings under the terms of this Agreement have been accepted.  Theauthorities shall name the supplier or suppliers of the product concerned.  If,
however, several suppliers from the same country are involved, and it is
impracticable to name all these suppliers, the authorities may  name the supplying
country concerned.  If several suppliers from more than one country are involved,
the authorities may name either all the suppliers involved, or, if this is
impracticable, all the supplying countries involved.
(…)TN/RL/W/143
Page 52
Article 9
Imposition and Collection of Anti-Dumping Duties
(…)
9.3 The amount of the anti-dumping duty shall not exceed the margin of
dumping as established under Article 2.
9.3.1 When the amount of the anti-dumping duty is assessed on a
retrospective basis, the  determination of the final liability for payment of
anti-dumping duties shall take place as soon as possible, normally within12 months, and in no case more than 18 months, after the date on which
a request for a final assessment of the amount of the anti-dumping duty
has been made.
20 Any refund shall be made promptly and normally in not
more  than 90 days following the determination of final liability made
pursuant to this sub-paragraph.  In any case, where a refund is not made
within 90 days, the authorities shall provide an explanation if so
requested.
9.3.2 When the amount of the anti-dumping duty is assessed on a
prospective basis, provision shall be made for a prompt refund, upon
request, of any duty paid in excess of the margin of dumping.  A refund
of any such duty paid in excess of the actual margin of dumping shall
normally take place within 12 months, and in no case more than18 months, after the date on which a request for a refund, duly supported
by evidence, has been made by an importer of the product subject to the
anti-dumping duty.  The refund authorized should normally be made
within 90 days of the above-noted  decision.
9.3.3 In determining whether and to what extent a reimbursement
should be made when the export price is constructed in accordance with
paragraph 3 of Article 2, authorities should take account of any change
in normal value, any change in costs incurred between importation and
resale, and any movement in the resale price which is duly reflected in
subsequent selling prices, and should calculate the export price with nodeduction for the amount of anti-dumping duties paid when conclusive
evidence of the above is provided.
(…)
______________________________________________________________
20 It is understood that the observance of the time-limits mentioned in this subparagraph
and in subparagraph 3.2 may not be possible where the product in question is subject to
judicial review proceedings.TN/RL/W/143
Page 53
54. Imposition and Collection of Duties
- clarify and improve the rules on imposition and collection of duties when a de minimis  margin is
determined for the collection of the duty. (TN/RL/W/7)
- discuss the different assessment methodologies (r etrospective and prospective)  with a view to
creating more predictable duty enforcement systems so that exporters and importers can operate in amore certain environment, while providing the re quisite protection from material injury to the
domestic industry.  (TN/RL/W/47)
55. Accrual of Interest
- consider whether changes to the Agreement may be necessary to address the lack of a provision
requiring payment of interest on any excess monies collected and held by the importing Member.
52
(TN/RL/W/98)
56. Refund or Reimbursement of the Duty Paid in Excess
 - improve the provisions regarding reimburseme nt of duties paid in excess. (TN/RL/W/104)
- consider whether the Anti-Dumping  and SCM Agreements  should be equally precise in the
provisions regarding reimbursement of duties paid in excess.53 (TN/RL/W/104)
- insert a provision guaranteeing the payment of interest on refunded anti-dumping duties in Article
9.3. (TN/RL/W/110)
                                                     
52 See Section 140 infra  on the SCM Agreement .
53 See Section 144 infra  on the SCM Agreement and  Section 68 infra on the  Anti-Dumping Agreement .TN/RL/W/143
Page 54
57.  "All-Others" Rate
- discuss whether it is logical to require authorities to ignore zero/ de minimis  margins in the
calculation of all-others rate, regardless of the fact that zero and de minimis  margins also represent
actual performance of exporters/producers from the exporting country. (TN/RL/W/10)
- improve Article 9.4 so that de minimis  margins are considered for the determination of "all others"
rate for exporters/producers which are not sampled. (TN/RL/W/66)
- consider whether Article 9.4 should be clarified to permit appropriate use of dumping margins which
may include limited amounts of facts available information in calculating the all-others rate.54
(TN/RL/W/72)
- remove the present uncertainty arising from the present lacuna (Article 9.4 prohibits the use of
certain margins in the calculations of the ceiling fo r the all-others rate but does not address the issue
of how that ceiling should be calculated in the event that all margins are excluded), by adopting a
                                                     
54 See Section 141 infra on the SCM Agreement .Article 9
Imposition and Collection of Anti-Dumping Duties
(…)
9.4 When the authorities have limited their examination in accordance with
the second sentence of paragraph 10 of Article 6, any anti-dumping duty applied
to imports from exporters or producers not included in the examination shall not
exceed:
(i) the weighted average margin of dumping established with
respect to the selected exporters or producers or,
(ii) where the liability for payment of anti-dumping duties is
calculated on the basis of a prospective normal value, the difference
between the weighted average normal value of the selected exporters or
producers and the export prices of exporters or producers not
individually examined,
provided that the authorities shall disregard for the purpose of this paragraph any
zero and de minimis  margins and margins established under the circumstances
referred to in paragraph 8 of Article 6.  The authorities shall apply individual
duties or normal values to imports from any exporter or producer not included in
the examination who has provided the necessary information during the course ofthe investigation, as provided for in subparagraph 10.2 of Article 6.
(…)TN/RL/W/143
Page 55
provision like that in Article 2.2.2(iii), i.e. determining dumping margins by "any other reasonable
method".  (TN/RL/W/90)
- improve Article 9.4 in order to ensure that the "all-other" rate can be calculated using an appropriate
and reasonable method in circumstances where exporters and producers investigated have been found
to cooperate insufficiently (in certain circumstances it would be appropriate to take into accountdumping margins that are based on constructed normal values for the determination of the "all-others"
rate; experience has shown that this may reveal necessary in situations where a limited amount of
facts available was used during the investigation in the anti-dumping margin determination).
(TN/RL/W/110)TN/RL/W/143
Page 56
ARTICLES 9 AND 11 - REVIEWS
Article 9
Imposition and Collection of Anti-Dumping Duties
(…)
9.5 If a product is subject to anti-dumping duties in an importing
Member, the authorities shall promptly carry out a review for the purpose of
determining individual margins of dumping for any exporters or producers
in the exporting country in question who have not exported the product to
the importing Member during the period of investigation, provided thatthese exporters or producers can show that they are not related to any of the
exporters or producers in the exporting country who are  subject to the
anti-dumping duties on the product.  Such a review shall be initiated and
carried out on an accelerated basis, compared to normal duty assessment
and review proceedings in the importing Member.  No anti-dumping duties
shall be levied on imports from such exporters or producers while the
review is being carried out.  The authorities may, however, withholdappraisement and/or request guarantees to ensure that, should such a review
result in a determination of dumping in respect of such producers or
exporters, anti-dumping duties can be levied retroactively to the date of the
initiation of the review.TN/RL/W/143
Page 57
Article 11
Duration and Review of Anti-Dumping Duties and Price Undertakings
(…)
11.2 The authorities shall review the need for the continued imposition of
the duty, where warranted, on their own initiative or, provided that a reasonable
period of time has elapsed since the imposition of the definitive anti-dumping
duty, upon request by any interested party which submits positive information
substantiating the need for a review.21 Interested parties shall have the right to
request the authorities to examine whether the continued imposition of the duty
is necessary to offset dumping, whether the injury would be likely to continue
or recur if the duty were removed or varied, or both.  If, as a result of the
review under this paragraph, the authorities determine that the anti-dumping
duty is no longer warranted, it shall be terminated immediately.
11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive
anti-dumping duty shall be terminated on a date not later than five years from
its imposition (or from the date of the most recent review under paragraph 2 if
that review has covered both dumping and injury, or under this paragraph),
unless the authorities determine, in a review initiated before that date on theirown initiative or upon a duly substantiated request made by or on behalf of the
domestic industry within a reasonable period of time prior to that date, that the
expiry of the duty would be likely to lead to continuation or recurrence  of
dumping and injury.
22 The duty may remain in force pending the outcome of
such a review.
(…)
_____________________________________________________________
21 A determination of final liability for payment of anti-dumping duties, as provided for
in paragraph 3 of Article 9, does not by itself constitute a review within the meaning of
this Article.
22 When the amount of the anti-dumping duty is assessed on a retrospective basis, a
finding in the most recent assessment proceeding under subparagraph 3.1 of Article 9that no duty is to be levied shall not by itself require the authorities to terminate thedefinitive duty.TN/RL/W/143
Page 58
58. Reviews55
(Article 9.3 - anti-dumping duty assessment)
(Article 9.5 - new shipper reviews)
(Article 11.2 - revocation reviews)
(Article 11.3 - sunset reviews)
- clarify the rules/disciplines pertaining to the review of existing anti-dumping measures.
(TN/RL/W/1) (TN/RL/W/86)
- provide a clear methodological framework for reviews.56 (TN/RL/W/138)
- address the absence of clear criteria and procedures for the initiation of final reviews and reviews
upon request, and for the determinations resulting therefrom. (TN/RL/W/7)
- clearly articulate the concepts, procedures and me thodologies applicable to reviews under Article 9.3
(anti-dumping duty assessment), Article 9.5 (new sh ipper reviews), Article 11.2 (revocation reviews)
and Article 11.3 (sunset reviews). (TN/RL/W/10)
- clarify that the provisions of Articles 2 (Deter mination of Dumping), 3 (Determination of Injury), 4
(Definition of Domestic Injury), 5 (Initiation and Subsequent Investigation), 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 be applied 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). (TN/RL/W/83)
- examine minimum standards of information for the initiation of reviews and elements of analysis in
relation to the recurrence of dumping and injury. (TN/RL/W/81)
- apply same rules as those used in the initial investigation to reviews. (TN/RL/W/10)
- formulate clear provision in the Anti-Dumping Agreement  to require that the procedures and
methodologies  used in the initial investigation shall be applied  in the reviews under Articles 9.3, 9.5,11.2 and 11.3. (TN/RL/W/66)
- clarify the Agreement to stipulate which, if any, provisions that were originally intended to apply to
initial investigations also apply to the various re view provisions under the Agreement; in cases where,
because of the fundamental differences between initial investigations and reviews, certain provisions
of the Agreement cannot be reasonably applied to reviews, consideration should be given to providing
rules that apply specifically to reviews.
57  (TN/RL/W/47)
                                                     
55 See Sections 13 and 15 supra .
56 This proposal was submitted under the general title of "Proposals on Cost Saving in Anti-Dumping
Proceedings" (TN/RL/W/ 138). See also Section 69 infra .
57 See Section 146 infra  on the SCM Agreement .TN/RL/W/143
Page 59
- ensure application of the de minimis  dumping margin of 5 per cent in refund and review cases.
(TN/RL/W/4)58
- limit to a maximum of 12 months the duration of reviews stipulated in Article 11.4. (TN/RL/W/10)(TN/RL/W/66)
- examine whether or not there should be mandatory deadlines for review investigations and whether
these deadlines could be significantly shorter than the ones which are currently applicable for new
investigations.
59 (TN/RL/W/138)
- add a new provision to Article 11 whereby a review can be undertaken on the basis of positive
evidence submitted by any interested party based on th e findings of a judicial review establishing that
the underlying investigation was flawed. (TN/RL/W/26)
- discuss the appropriateness of an expansive use of sunset  reviews to continue anti-dumping orders.
(TN/RL/W/6)
- provide that all anti-dumping measures shall remain in force only for as long as and to the extent
necessary to counteract dumping which is causing injury and shall without exception be terminated at
the latest 5 years from the imposition of the order.  (TN/RL/W/76)
- provide that a Member shall not initiate a new anti-dumping investigation, either on its own
initiative or based on a petition, until a date no sooner than one year following the termination of theanti-dumping measure, unless there are exceptional circumstances that justify the initiation in a
shorter period, which shall not be less than six months; the authority shall give a full description of the
exceptional circumstances and present the reasons justifying the initiation of the investigation within
such a shorter period in the public notice of initiation. (TN/RL/W/76)
- adopt "automatic sunset" of anti-dumping measures, and allow a one year grace period until re-
investigation. (TN/RL/W/111)
- establish that anti-dumping measures taken by  developed country Members against exports from
developing country Members shall automatically cease after five years, and that no application to
initiate new investigations against the same products from the same developing country shall be
accepted before 365 days after the previous measures have ceased.   (TN/RL/W/66)
- clarify the circumstances that might lead to the continuation of a measure, and provide an indicative
list of factors that authorities should consider in determining whether the expiry of the duty would be
likely to lead to continuation or recurrence of dumping and injury.
60 (TN/RL/W/47)
- improve the rule so that the reviews are not unfa irly extended to the prejudice of responding parties
(to this end, clarify (1) that reviews under Articles 9.3 and 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 becompleted within 9 months after the date on which a request for a review has been made, unless an
extension of the procedure is requested by the new shipper). (TN/RL/W/83)
- apply the 12-month time-limit set forth in Ar ticle 11.4 to sunset reviews. (TN/RL/W/110)
                                                     
58 See Section 37 supra .
59 This proposal was submitted under the general title of "Proposals on Cost Saving in Anti-Dumping
Proceedings" (TN/RL/W/ 138). See also Section 69 infra .
60 See Section 146 infra  on the SCM Agreement .TN/RL/W/143
Page 60
- authorize members to amend the level of the measures imposed following sunset reviews which
concluded that injurious dumping was likely to continue or recur, in order to guarantee under Article
11.3 the "adequate" character of anti-dumping m easures stated in Article 9.1. (TN/RL/W/110)
- include guidelines for expeditious reviews for new exporters. (TN/RL/W/7)
- determine whether  Article 9.5 needs to be clarified in order to prevent misuse of the special
provisions for new shippers.61 (TN/RL/W/72)
- establish detailed procedural guidelines on how to conduct new exporter reviews, with a particular
emphasis on situations where export prices are not known because the company concerned has not yet
effected exports but intends to sell to the country which imposed an anti-dumping measure.
(TN/RL/W/81)
- improve Article 9.5 in order to prevent its use by exporters and producers subject to anti-dumping
measures as a circumventing instrument; such improvement could be achieved by examining, amongother elements,  the circumstances in which the initiation of newcomer reviews can be requested, the
newcomer review procedure and duration and the measures applicable to new exporters or producers
while newcomer reviews are carried out. (TN/RL/W/110)
- clarify that the request for Article 9.3 reviews can only be made by exporters or importers.
(TN/RL/W/83)
- clarify that the margin of dumping 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 less than one year, and not on
an individual import basis. (TN/RL/W/83)
- 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 of proof is on those partiesadvocating the continuation of the anti-dumping 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 original investigation; and (2) in case the measure is subject to reviews after the original
measure, the authorities shall rely on the margin f ound in the most recent review; (3) if no dumping
margin has been found, the "likelihood of injury" test shall not apply and the measure shall be
terminated.  The following points should be included in the harmonized indicative list  with respect to
the assessment of the "likelihood of injury", (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 Anti-Dumping Agreement , based on facts, and not
merely on allegation, conjecture or speculation; (3) the determination made by the authorities whetherthe continuation of the anti-dumping duty is warranted or not, shall be based on the current volume of
the dumped imports). (TN/RL/W/83)
- explore the differences between reviews under Articles 11.2 and 11.3, going beyond the issue of the
point in time at which such reviews may be conducted and the parties that may request them.
(TN/RL/W/81)
- consider whether there should be a greater symmetry between the provisions of Article 19.3 of the
SCM Agreement  and Article 9.5 of the Anti-Dumping Agreement  with regard to the basis on which
such reviews must be carried out. (TN/RL/W/104)
62
                                                     
61 See Section 146 infra  on the SCM Agreement .TN/RL/W/143
Page 61
ARTICLE 10 - RETROACTIVITY
                                                                                                                                                                    
62 See Section 146 infra  on the SCM Agreement  and Section 68 infra  on the Anti-Dumping Agreement . Article 10
Retroactivity
10.1 Provisional measures and anti-dumping duties shall only be applied to
products which enter for consumption after the time when the decision taken under
paragraph 1 of Article 7 and paragraph 1 of Article 9, respectively, enters into
force, subject to the exceptions set out in this Article.
10.2 Where a final determination of injury (but not of a threat thereof or of a
material retardation of the establishment of an industry) is made or, in the case of afinal determination of a threat of injury, where the effect of the dumped imports
would, in the absence of the provisional measures, have led to a determination of
injury, anti-dumping duties may be levied retroactively for the period for which
provisional measures, if any, have been applied.
10.3 If the definitive anti-dumping duty is higher than the provisional duty paid
or payable, or the amount estimated for the purpose of the security, the difference
shall not be collected.  If the definitive duty is lower than the provisional duty paidor payable, or the amount estimated for the purpose of the security, the difference
shall be reimbursed or the duty recalculated, as the case may be.
10.4 Except as provided in paragraph 2, where a determination of threat of
injury or material retardation is made (but no injury has yet occurred) a definitive
anti-dumping duty may be imposed only from the date of the determination ofthreat of injury or material retardation, and any cash deposit  made during the
period of the application of provisional measures shall be refunded and any bonds
released in an expeditious manner.
10.5 Where a final determination is negative, any cash deposit made during the
period of the application of provisional measures shall be refunded and any bondsreleased in an expeditious manner.
10.6 A definitive anti-dumping duty may be levied on products which were
entered for consumption not more than 90 days prior to the date of application of
provisional measures, when the authorities determine for the dumped product in
question that:
(i) there is a history of dumping which caused injury or that
the importer was, or should have been, aware that the exporter practises dumping
and that such dumping would cause injury, and
(ii) the injury is caused by massive dumped imports of a
product in a relatively short time which in light of the timing and the volume of the
dumped imports and other circumstances (such as a rapid build-up of inventories
of the imported product) is likely to seriously undermine the remedial effect of thedefinitive anti-dumping duty to be applied, provided that the importers concerned
have been given an opportunity to comment.
10.7 The authorities may, after initiating an investigation, take such measures
as the withholding of appraisement or assessment as may be necessary to collect
anti-dumping duties retroactively, as provided for in paragraph 6, once they havesufficient evidence that the conditions set forth in that paragraph are satisfied.
10.8 No duties shall be levied retroactively pursuant to paragraph 6 on products
entered for consumption prior to the date of initiation of the investigation.TN/RL/W/143
Page 62
59. Retroactivity
- consider whether the end result of the discussions on the issue of retroactivity should reflect a
symmetry between the Anti-Dumping  and the SCM Agreement.63 (TN/RL/W/104)
60. Critical Circumstances
- consider clarifying what provisional steps are appropriate to preserve the right to impose duties
retroactively (where there is a finding of critical circumstances); clarify and improve Article 10.6 in
order to make it more effective (provide a sufficient remedy).64 (TN/RL/W/72)
                                                     
63 See Section 147 infra  on the SCM Agreement  and Section 68 infra  on the  Anti-Dumping Agreement .
64 See Section 148 infra  on the SCM Agreement .TN/RL/W/143
Page 63
ARTICLE 12 - PUBLIC NOTICE AND EXPLANATION OF DETERMINATIONS
Article 12
Public Notice and Explanation of Determinations
12.1 When the authorities are satisfied that there is sufficient evidence to
justify the initiation of an anti-dumping investigation pursuant to Article 5, the
Member or Members the products of which are subject to such investigation and
other interested parties known to the inve stigating authorities to have an interest
therein shall be notified and a public notice shall be given.
12.1.1 A public notice of the initiation of an investigation shall contain,
or otherwise make available through a separate report23, adequate
information on the following:
(i) the name of the exporting country or countries and the
product involved;
(ii) the date of initiation of the investigation;
(iii) the basis on which dumping is alleged in the application;(iv) a summary of the factors on which the allegation of
injury is based;
(v) the address to which representations by interested parties
should be directed;
(vi) the time-limits allowed to interested parties for making
their views known.
12.2 Public notice shall be given of any preliminary or final determination,
whether affirmative or negative, of any decision to accept an undertaking
pursuant to Article 8, of the termination of such an undertaking, and of the
termination of a definitive anti-dumping duty.  Each such notice shall set forth,or otherwise make available through a separate report, in sufficient detail the
findings and conclusions reached on all issues of fact and law considered
material by the investigating authorities.  All such notices and reports shall be
forwarded to the Member or Members the products of which are subject to such
determination or undertaking and to other interested parties known to have aninterest therein.TN/RL/W/143
Page 64
12.2.1 A public notice of the imposition of provisional measures shallset forth, or otherwise make available through a separate report,sufficiently detailed explanations for the preliminary determinations on
dumping and injury and shall refer to the matters of fact and law which
have led to arguments being accepted or rejected.  Such a notice or report
shall, due regard being paid to the requirement for the protection of
confidential information, contain in particular:
(i) the names of the suppliers, or when this is impracticable,
the supplying countries involved;
(ii) a description of the product which is sufficient for
customs purposes;
(iii) the margins of dumping established and a full
explanation of the reasons for the methodology used in the
establishment and comparison of the export price and the normalvalue under Article 2;
(iv) considerations relevant to the injury determination as set
out in Article 3;
(v) the main reasons leading to the determination.
12.2.2 A public notice of conclusion or suspension of an investigation
in the case of an affirmative determination providing for the imposition
of a definitive duty or the acceptance of a price undertaking shall
contain, or otherwise make available through a separate report, all
relevant information on the matters of fact and law and reasons which
have led to the imposition of final measures or the acceptance of a priceundertaking, due regard being paid to the requirement for the protection
of confidential  information.  In particular, the notice or report shall
contain the information described in subparagraph 2.1, as well as the
reasons for the acceptance or rejection of relevant arguments or claims
made by the exporters and importers, and the basis for any decisionmade under subparagraph  10.2 of Article 6.
12.2.3 A public notice of the termination or suspension of an
investigation following the acceptance of an undertaking pursuant to
Article 8 shall include, or otherwise make available through a separate
report, the non-confidential part of this undertaking.
12.3 The provisions of this Article shall apply mutatis mutandis to the
initiation and completion of reviews pursuant to Article 11 and to decisionsunder Article 10 to apply duties retroactively.
_________________________________________________________________
23 Where authorities provide information and explanations under the provisions of this
Article in a separate report, they shall ensure  that such report is readily available to the
public.TN/RL/W/143
Page 65
61. Public Notice and Explanation of Determinations / Transparency
- improve standards and procedures for public notices and explanations of determinations; such
procedures should provide the public and any interested party with all facts, methods and assessments,
including a detailed description on how the exact results relating to dumping and injury determinationhave been derived at, in order to allow independent scrutiny. (TN/RL/W/29)
- revisit Article 12.1 in order to seek greater clarification and detail and to guarantee transparency in
the investigation since its initiation (Article 12.1 establishes that adequate information on different
aspects of the investigation should be introduced either in the public notice or in a separate report,
however, it does not mention fundamental information such as the period under investigation for
dumping and injury, as well as the conclusions reached by the investigating authorities upon the
evidence presented in the public notice). (TN/RL/W/29)
- further detail Articles 12.2.1 and 12.2.2 in order to guarantee that the relevant and necessary
explanations will be made available; for example:
• consider whether it would be worth mentioning that where the investigating authority should
adopt the normal price of exportation for a third country, it should explain the criteria used forselecting the third country;
• consider whether, in case of using samples as provided in Article 6.10, the criteria for the
selection should be explained;
• consider whether in case of using the constructed price, the investigating authority should explain
the reasons for choosing certain criteria for establishing the amounts of administrative costs, ofsales and general costs, as well as the amount of profit;
• consider whether the investigating authorities should be required to present the analysis on the
impact of other factors on the domestic industry. (TN/RL/W/29)
-  examine the issue of transparency in investigatory procedures. (TN/RL/W/86)
- consider ways to promote greater disclosure of decisions and calculations performed; for example,
investigating authorities could be required to give detailed descriptions of decisions made, the facts on
which those decisions were based and the calculation methodology applied to determine the dumping
margin.
65 (TN/RL/W/35)
- provide definition of "sufficient detail" in Article 12. (TN/RL/W/35)
- consider bolstering the information requirements in Article 12 of the Anti-Dumping Agreement in
order to ensure greater transparency and procedural fairness. (TN/RL/W/47)
- lay down guidelines with respect to the level of detail required in determinations 66. (TN/RL/W/132)
                                                     
65 See Section 149 infra  on the SCM Agreement .
66 See Section 149 infra  on the SCM Agreement .TN/RL/W/143
Page 66
- develop a detailed and practical guide to best practice options for implementing transparency
provisions in the AD Agreement; have a draft document developed on which to base further
discussions; options on how this work could be progressed include:
• having the matter taken up in the Working Group on Implementation;
• establishing a “transparency working group” under the auspices of the Rules Group;
• asking the Secretariat to develop a draft document; or
• commission some work from outsi de sources.  (TN/RL/W/137)TN/RL/W/143
Page 67
ARTICLE 13 - JUDICIAL REVIEW
62. Judicial Review
- discuss whether Members should provide additional information on procedures within their
respective countries for pursuing legal recourse in an anti-dumping case (e.g. identify the court or
other judicial system put in place and explain how that legal system operates). 67 (TN/RL/W/35)
                                                     
67 See Section 150 infra  on the SCM Agreement .Article 13
Judicial Review
Each Member  whose national legislation contains provisions on anti-dumping
measures shall maintain judicial, arbitral or administrative tribunals or
procedures for the purpose, inter alia , of the prompt review of administrative
actions relating to final determinations and reviews of determinations within
the meaning of Article 11.  Such tribunals or procedures shall be independentof the authorities responsible for the determination or review in question.TN/RL/W/143
Page 68
ARTICLE 15 - DEVELOPING COUNTRY MEMBERS
63. Special and Differential Treatment for Developing Country Members68
- establish a special and clearly defined developing country package once clear, effective and updated
rules for all WTO Members have been discussed. (TN/RL/W/13)
- take account in the course of the negotiations of the situation of small economies more vulnerable to
the harm caused by unfair trade practices, as well as the situation of developing country Members,
bearing in mind that the scope of special and differential treatment should be confined to operations
between developed countries and developing countries. (TN/RL/W/36)
-  develop the terms of Article 15 to make the provision fully operational; for instance, elaborate on
the idea of "special regard" and "constructive remedies" (provisions could be developed both as for
the exemplification of ways to give "special regard" and constructive remedies that should be
explored by the authorities of the developed country and as regards the procedures to be followed in
each situation). (TN/RL/W/46)
- consider including specific provisions to give developing country members meaningful and effective
S&D treatment.  (TN/RL/W/46)
- "special regard", "special situation", and "essential interests of developing country Members", read
together, shall be understood to require that developed country Members shall specifically take into
account the development needs of developing and least-developed country Members particularly forsustainably maintaining or increasing market access for products of export interest to them; in this
regard:
• the causal link between the fact of dumping and of injury on the one hand, to imports from
developing and least-developed country Members on the other, shall be determined on a case bycase basis taking into account the WTO goals of improving living standards in developing and
least-developed country Members through growth in the trade of these countries, in a manner that
                                                     
68 The proposals listed under this Section are those that have been specifically referred to by
participants as relating to the Special and Differen tial Treatment for Developing Country Members provision
contained in Article 15 of the Anti-Dumping Agreement . Other proposals regarding developing country
Members may be found under other Sections of this paper such as Sections 31, 37, 51, 52, 58.Article 15
Developing Country Members
It is recognized that special regard must be given by developed country
Members to the special situation of developing country Members when
considering the application of anti-dumping measures under this Agreement.
Possibilities of constructive remedies provided for by this Agreement shall beexplored before applying anti-dumping duties where they would affect the
essential interests of developing country Members.TN/RL/W/143
Page 69
demonstrates that the achievement of these goals in developing and least-developed country
Members has duly been taken into account; and
• coherence shall be ensured between the Anti-Dumping  and the SCM Agreements  on the basis of
the importance of sustainably maintaining or increasing market access for products of exportinterest to developing and least-developed country Members; and of maintaining their export
competitiveness.
69 (Proposal refered to the NGR by the Chairman of the General Council, letter of
20 May 2003 to the Chairman of the NGR)
- "constructive remedies provided for by this Agreement" shall within the context of Article 15 be
understood to include:
• consultations for mutually agreed solutions with in the meaning of the paragraph above other than
anti-dumping duties, price undertakings, or any action prohibited by the Agreement on
Safeguards;
• internal reforms in developed country Members regarding market conditions, and employment
and investment conditions to improve competitiveness on the basis of fair competition rather thantaking anti-dumping measures against imports; and
• exploring solutions against anti-competitive practices if determined to have taken place, on the
basis of taking into account and protecting the interests of domestic consumers, rather than takingany anti-dumping measures. (Proposal refered to the NGR by the Chairman of the General
Council, letter of 20 May 2003 to the Chairman of the NGR)
                                                     
69 See Section 68 infra .TN/RL/W/143
Page 70
ARTICLE 17 - CONSULTATION AND DISPUTE SETTLEMENT
64. Standard of Review
- consider whether Article 17.6 should be addressed to ensure that panels and the Appellate Body
properly apply it.70 (TN/RL/W/130)
                                                     
70 See Section 168 infra  on the SCM Agreement .Article 17
Consultation and Dispute Settlement
(…)
17.5 The DSB shall, at the request of the complaining party, establish a panel to
examine the matter based upon:
(i) a written statement of the Member making the request indicating
how a benefit accruing to it, directly or indirectly, under this Agreement has beennullified or impaired, or that the achieving of the objectives of the Agreement is
being impeded, and
(ii) the facts made available in conformity with appropriate domestic
procedures to the authorities of the importing Member.
17.6 In examining the matter referred to in paragraph 5:
(i) in its assessment of the facts of the matter, the panel shall
determine whether the authorities' establishment of the facts was proper andwhether their evaluation of those facts was unbiased and objective.  If the
establishment of the facts was proper and the evaluation was unbiased and
objective, even though the panel might have reached a different conclusion, the
evaluation shall not be overturned;
(ii) the panel shall interpret the relevant provisions of the Agreement
in accordance with customary rules of interpretation of public international law.
Where the panel finds that a relevant provision of the Agreement admits of more
than one permissible interpretation, the panel shall find the authorities' measure to
be in conformity with the Agreement if it rests upon one of those permissible
interpretations.
(…)TN/RL/W/143
Page 71
ARTICLE 18 - FINAL PROVISIONS
Article 18
Final Provisions
18.1 No specific action against dumping of exports from another Member can
be taken except in accordance with the provisions of  GATT 1994, as interpreted
by this Agreement.49
18.2 Reservations may not be entered in respect of any of the provisions of thisAgreement without the consent of the other Members.
18.3 Subject to subparagraphs 3.1 and 3.2, the provisions of this Agreement
shall apply to investigations, and reviews of existing measures, initiated pursuant
to applications which have been made on or after the date of entry into force for a
Member of the WTO Agreement.
18.3.1 With respect to the calculation of margins of dumping in refund
procedures under paragraph 3 of Article 9, the rules used in the most recentdetermination or review of dumping shall apply.
18.3.2 For the purposes of paragraph 3 of Article 11, existing anti-dumping
measures shall be deemed to be imposed on a date not later than the date of entry
into force for a Member of the WTO Agreement, except  in cases in which the
domestic legislation of a Member in force on that date already included a clause ofthe type provided for in that paragraph.
18.4 Each Member shall take all necessary steps, of a general or particular
character, to ensure, not later than the date of entry into force of the WTO
Agreement for it, the conformity of its laws, regulations and administrative
procedures with the provisions of this Agreement as they may apply for theMember in question.
18.5 Each Member shall inform the Comm ittee of any changes in its laws and
regulations relevant to this Agreement and in the administration of such laws and
regulations.
18.6 The Committee shall review annually the implementation and operation of
this Agreement taking into account the objectives thereof.  The Committee shall
inform annually the Council for Trade in Goods of developments during the period
covered by such reviews.
18.7 The Annexes to this Agreement constitute an integral part thereof.
__________________________________________________________________
49 This is not intended to preclude action under other relevant provisions of GATT 1994, as
appropriate.TN/RL/W/143
Page 72
65. Detailed National Legislation/Regulation
- provide the Negotiating Group on Rules with a comprehensive overview of how Members have
applied the procedural fairness provisions of the Agreement in their national laws, regulations and
practices, as a starting point in the discussion on principles and procedures that could be adopted into
the Agreement.71 (TN/RL/W/35)
- encourage Members to provide binding regulations or other administrative guidelines that give the
necessary details about the procedures their authorities use to conduct investigations.72 (TN/RL/W/35)
                                                     
71 See Section 151 infra  on the SCM Agreement .
72 See Section 151 infra  on the SCM Agreement .TN/RL/W/143
Page 73
OTHER ISSUES
66. Circumvention
-  discuss appropriate ways to preserve the effectiveness of the anti-dumping instrument (prevent
circumvention of anti-dumping  measures).  (TN/RL/W/13)
- negotiate uniform procedures to address the circumvention of anti-dumping measures.73
(TN/RL/W/50)- address the issue of circumvention; adopt principles in order to set a common framework for the
adoption of anti-circumven tion measures. (TN/RL/W/110)
67. Duty Refund
- consider having special dispute settlement provisions for the Anti-Dumping  Agreement  in cases
where the imposition of duties under this agreement has been found to be inconsistent with the
provisions of the agreement; these new provisions would require the return of anti-dumping duties or
duty deposits in cases where a Member's compliance action with a DSB decision results in the
measure being withdrawn, or a partial return of  duties or duty deposits where the amount of
duties/deposits that would have been collected under a WTO-compliant measure is less than theamounts actually collected.
74 (TN/RL/W/47)
68. Harmonization of the Anti-Dumping Agreement and the SCM Agreement 75  
- address divergences between similar provisions of the Anti-Dumping  and the SCM Agreements , so
that, where appropriate, differences in similar provisions of the two agreements are eliminated.(TN/RL/W/47)
69. Reducing the Cost of Investigations
- explore whether an improvement could be achieved by screening all procedural aspects with a view
to identifying those areas where changes can bring about a reduction in the cost of co-operation whileat the same time maintaining the quality of the investigation. (TN/RL/W/13)
- discuss the simplification and standardization of information collection, particularly at the initial
stages of investigations. (TN/RL/W/13)
- identify areas where increased procedural fairness can reduce costs of investigations.
76
(TN/RL/W/35)
                                                     
73 See Section 155 infra  on the SCM Agreement .
74 See Section 156 infra  on the SCM Agreement .
75 See Section 157 infra  on the SCM Agreement and  Sections 22, 30, 50, 56, 58, 59, 63 and 81 on the
Anti-Dumping Agreement .
76 See Section 158 infra  on the SCM Agreement .TN/RL/W/143
Page 74
- explore standardizing verification outlines and the structure of verification reports.77 (TN/RL/W/35)
- explore the possibility of model/standard questionnaires which are to be applied by Members
carrying out AD investigations; examine whether or not it would be appropriate to have simplified
questionnaires for SMEs. (TN/RL/W/138)
- explore whether and to what extent standard procedures for on-spot verifications would help (the
provisions of Annex I of the Anti-Dumping Agreement  are a good starting-point for further
clarifications in this respect).78 (TN/RL/W/138)
- discuss whether the periods set out in Article 5.10 of the Anti-Dumping Agreement  could be
significantly shortened (this discussion would also have to reflect that shorter deadlines impose
greater discipline on investigating authorities and interested parties).79 (TN/RL/W/138)
- examine whether or not there should be mandatory deadlines for review investigations and whether
these deadlines could be significantly shorter than the ones which are currently applicable for newinvestigations.
80 (TN/RL/W/138)
- discuss whether the current ADA should be clarified by explicitly forbidding the mandatory
representation by lawyers of a co-operating party. (TN/RL/W/138)
- provide clear rules as to how non-confidential summaries should be prepared; give guidance with
regard to all areas where non-confidential summaries have to be submitted including for transaction-by-transaction listings and information on cost of production; provide for the possibility of a review of
such summary, e.g. by a "Permanent Group of Experts" type of body serviced by the WTO
Secretariat; ask Members to establish domestic rules allowing for independent review of non-
confidential summaries upon request by an interested party; built upon Article 13 of the Anti-
Dumping Agreement  as a basis for this option
81. (TN/RL/W/138)
- clarify rules on disclosure (Art. 6.9 of the Anti-Dumping Agreement ); any rules on disclosure should
aim at defining the minimum information to be given82. (TN/RL/W/138)
- provide a clear methodological framework for reviews.83 (TN/RL/W/138)
- design new rules on injury analysis which give more precise guidance; examine whether one could
find straightforward rules for a number of typical "extreme" cases (this could be achieved byproviding guidance to the application of the factors listed in Article 3.2 and Article 3.4 of the Anti-
Dumping Agreement ; such guidance could be obtained by introducing more quantitative elements
where possible).
84 (TN/RL/W/138)
70. Swift Control Mechanism for Initiations
- reflect on whether and under which conditions initiations of investigations could be made subject to
a swift control  mechanism. (TN/RL/W/13)
                                                     
77 See Section 158 infra  on the SCM Agreement .
78 See Section 43 supra .
79 See Section 38 supra .
80 See Section 58 supra .
81 See Sections 42 supra .
82 See Section 45 supra .
83 See Section 58 supra .
84 See Section 23 supra .TN/RL/W/143
Page 75
- consider whether, and what circumstances, initiations of investigations could be made subject to a
swift dispute settlement procedure under the Understanding on the Settlement of Disputes.
(TN/RL/W/47)
- consider establishing "fast track initiation panels", which, ideally, would issue their
recommendations before the actual imposition of measures.  Procedures for fast track panels could
contain e.g. the following elements:
• The grounds on which initiations can be challenged could be limited to a few key elements of the
initiation.  For instance the following three as pects could be subject to review: standing of
complainants (Article 5.4), formal requirements for the application (Article 5.2(i) to (iv)), and
accuracy and adequacy of evidence concerning dumping, injury and causal link (Article 5.3)
• Shortened period for consultation before the establishment of the fast-track panel
• Only one written submission and one hearing
• Shorter deadlines for submissions
• No interim review stage
• Shortened standard period for issuance of the report to the Parties and for its circulation to the
other Members
• Obligation on the panel to issue suggestions on how to implement recommendations (alternatively
one could think of a recommendation to terminate as the only possible recommendation if
initiation panels find a violation)
• Short and standard "reasonable period of time" for implementation.85 (TN/RL/W/67)
- consider providing for "binding arbitration", which could cover e.g. absence of evidence (i.e. any
of the items listed in Article 5.2) or manifestly unsuitable evidence in the complaint, missingnotification (Article 5.5).  Arbitration should be  requested quickly (perhaps within 10 days of
initiation), be concluded in a short time (e.g. 30 days) and without appeal. Arbitration could be
conducted on the basis of a "check-list" of the basic elements required for the initiation of an
investigation and which fall within the scope of the arbitration.
86 (TN/RL/W/67)
- consider the creation of a "standing advisory body" (this body could be modelled upon the
"Permanent Group of Experts" provided for in Article 24.3 of the SCM Agreement ) to give a non-
binding advisory opinion on the WTO legality of the initiation of an anti-dumping investigation; thisbody would report to the WTO Committee on Anti-Dumping Practices where Members could
express their views on the report.
87 (TN/RL/W/67)
                                                     
85 See Section 159 infra  on the SCM Agreement .
86 See Section 159 infra  on the SCM Agreement .
87 See Section 159 infra  on the SCM Agreement .TN/RL/W/143
Page 76
71. Technical Assistance / Capacity Building
- develop standardized training programs; organize meetings of administrators to learn and discuss
technical issues 88 (TN/RL/W/35)
72. Public Interest
- clarify the rules/disciplines pertaining to the consideration of the broader public interest.
(TN/RL/W/1)
- strengthen rules in order to ensure that relevant information pertaining to public interest is taken into
account in a more substantive manner.89 (TN/RL/W/6)
- discuss whether authorities should take into account the interests of the other economic sectors
affected by the anti-dumping measure. (TN/RL/W/6)
-  discuss the establishment of a public interest test (in terms of an examination of the impact on
economic operators) as an additional condition before measures can be imposed. (TN/RL/W/13)
- examine the unintended effects of anti-dumping action and efforts to strengthen existing provisions
of the Agreement so as to fully consider the consequences of anti-dumping duties for broader
economic, trade and competition policy concerns. (TN/RL/W/47)
73. Concurrent Application of Anti-Dumping and Safeguard Measures
- suspend the imposition of anti-dumping measures or adjust the level of duty as long as the safeguard
measure is enforced, in situations which result in concurrent imposition of anti-dumping and
safeguard measures on the same product.  (TN/RL/W/26)
74. Persistent Dumping
- address the issue of persistent dumping which may take two forms: (i) persistent dumping of the
same product imported from different countries, (ii) persistent dumping of the same product, by the
same producer/country, being exported to numerous countries around the world.90 (TN/RL/W/72)
- in the case of persistent dumping of the same product imported from different countries, consider
introducing rules providing for expedited procedures to determine whether the newly surging imports
are being dumped and causing material injury. (TN/RL/W/72)
                                                     
88 See Section 160 infra  on the SCM Agreement .
89 See Section 49 supra .
90 See Section 163 infra  on the SCM Agreement .TN/RL/W/143
Page 77
75. Repeated Dumping
- examine the issue of exporters of products that are found to be injuriously dumping a product in
three or more Member jurisdictions; repeated dumping findings against the products of the same
exporter and country may indicate an underlying practice or policy in the exporting country that
should be addressed. (TN/RL/W/47)
76. Codification of Recommendations and Decisions
- consider the codification of some case law in anti-dumping matters. (TN/RL/W/86)
- codify in the Agreement the recommendations of the Anti-Dumping Committee's Working Group on
Implementation concerning mutually agreeable practices with respect to the application of the Anti-
Dumping Agreement , as well as any further recommendations made during the course of these
negotiations.   (TN/RL/W/47)
- consider whether some or all of the Dispute Settlement Body's interpretations of the Anti-Dumping
Agreement should be incorporated into the Agreement.91 (TN/RL/W/47)
77. Periods of Data Collection for Anti-Dumping Investigations
- provide guidelines for determining what period or periods of data collection may be appropriate for
the examination of dumping and of injury. (TN/RL/W/29)
- ensure, with respect to original investigations to determine the existence of dumping and consequent
injury, that the period of data collection for dumping investigations coincides with the period of data
collection for investigating sales below cost. (TN/RL/W/29)
- ensure, with respect to original investigations to determine the existence of dumping and consequent
injury, that the period of data collection for injury investigations includes the entirety of the period of
data collection for the dumping investigation. (TN/RL/W/29)
78. Duty Absorption
- discuss and clarify the issue of duty absorption (w hen there appears to have been no or insufficient
increase in the export price in response to the imposition of measures). (TN/RL/W/86)
79. Consultation Prior to Initiation
- consider supplementing a consultation provision to provide that prior to initiation of any
investigation under Article VI, concerned Members sh all consult with a view to (a) considering the
evidence of dumping and injury; (b) identifying any trade distorting practices that may have led to a
situation of injurious dumping; and (c) resolving any situation of injurious dumping and trade
                                                     
91 See Section 161 infra on the SCM Agreement .TN/RL/W/143
Page 78
distorting practices through appropriate settlement or undertaking; such consultations may also occur
prior to the imposition of any anti-dumping duties. (TN/RL/W/129)
80. High Inflation Economies
- clarify relevant provisions to give better guidance with respect to special methodologies which may
be necessary when an exporting country is experienci ng very high levels of inflation. (TN/RL/W/130)
81. Consistent Use of Terminology
- review the use of terms within the Anti-Dumping  and Subsidies Agreements  as well as across the two
agreements (such a review would reveal the inconsistent use of certain terms, which may have
unintended consequences for the interpretation of the Agreements , for example, Article 6.7 of the
Anti-Dumping Agreement  provides for notifying "the representatives of the government of the
Member" with respect to an in-country verification, by contrast, in elaborating on the same
requirement, Annex I, paragraph 1 refers to notifying "the authorities of the exporting Member";
similarly, in what are otherwise equivalent provisions, Article 19.3 of the SCM Agreement  uses the
term "levied" where Article 9.2 of the Anti-Dumping Agreement  uses the term "collected").92
(TN/RL/W/130)
82. Preliminary Determination
- consider whether the Agreement could be improved by requiring that Members issue a preliminary
determination at a point in time prior to a final determination that would give parties sufficient time to
defend their interests. 93 (TN/RL/W/130)
83. Nature and Composition of Investigating Authorities
- consider whether the Anti-Dumping Agreement  should be clarified to expressly incorporate the
concept that individual members should continue to have the flexibility to organize their authorities as
they deem appropriate, particularly for Members that use authorities with multiple decision makers;matters that may be addressed in such a clarification could include, for example, a Member's ability:
(a) to determine what constitutes the determinatio n of the appropriate authority; and (b) to permit
separate authorities to maintain distinct records.
94 (TN/RL/W/130)
                                                     
92 See Section 166 infra  on the SCM Agreement and Section 68  supra on the  Anti-Dumping Agreement.
93 See Section 167 infra  on the SCM Agreement .
94 See Section 169 infra  on the SCM Agreement .TN/RL/W/143
Page 79
84. Small Economies: Regional Authority
- explore proposal for a regional trade authority (proposed in the context of the Work Programme on
Small Economies), which would conduct trade re medy cases on behalf of individual Members.95
(TN/RL/W/35)
- consider how a regional authority (designated by small economies that do not have the resources to
maintain a "competent authority") might function, and any changes in the Anti-Dumping Agreement
which may be necessary.96 (TN/RL/W/72)
                                                     
95 See Section 170 infra  on the SCM Agreement .
96 See Section 170 infra  on the SCM Agreement .TN/RL/W/143
Page 80
PART II
I.  SUBSIDIES DISCIPLINES
ARTICLE 1 - DEFINITION OF SUBSIDY
Article 1
Definition of a Subsidy
1.1 For the purpose of this Agreement, a subsidy shall be deemed to exist
if:
(a)(1) there is a financial contribution by a government or any public
body within the territory of a Member (referred to in this Agreement as
"government"), i.e. where:
(i) a government practice involves a direct transfer of
funds (e.g. grants, loans,  and equity infusion), potential direct
transfers of funds or liabilities (e.g. loan guarantees);
(ii) government revenue that is otherwise due is foregone
or not collected (e.g. fiscal incentives such as tax credits)1;
(iii) a government provides goods or services other than
general infrastructure, or purchases goods;
(iv) a government makes payments to a funding
mechanism, or entrusts or directs a private body to carry out
one or more of the type of functions illustrated in (i) to (iii)above which would normally be vested in the government and
the practice, in no real sense, differs from practices normally
followed by governments;
or
(a)(2) there is any form of income or price support in the sense of
Article XVI of GATT 1994;
and
(b) a benefit is thereby conferred.
1.2 A subsidy as defined in paragraph 1 shall be subject to the provisions
of Part II or shall be subject to the provisions of Part III or V only if such asubsidy is specific in accordance with the provisions of Article 2.
________________________________________________________________
1 In accordance with the provisions of Ar ticle XVI of GATT 1994 (Note to Article
XVI) and the provisions of Annexes I through III of this Agreement, the exemption of
an exported product from duties or taxes borne by the like product when destined fordomestic consumption, or the remission of such duties or taxes in amounts not inexcess of those which have accrued, shall not be deemed to be a subsidy.TN/RL/W/143
Page 81
85. Definition of Subsidy
- make subsidies rules for industrial products more operational in order to bring "disguised" subsidies
for industrial products more clearly within the disciplines of the SCM Agreement. (TN/RL/W/30)
- clarify Article 1, so that entities which are effectively controlled by the state and acting on non-
commercial terms are covered by this provision (an alternative would be to clarify the rules so as to
cover situations where the public direction is less apparent but nevertheless leads to non-commercial
behaviour in terms of the financial operation in question). (TN/RL/W/30)
- further develop the standard for determin ation of government control. (TN/RL/W/78)
- clarify the definition of "public body". (TN/RL/W/78)
- examine the "entrusts or directs" provision of Article 1.1(a)(1)(iv) to clarify the rules in cases where
government action, though very much influencing the course of events, may not be clear or explicitly
documented. (TN/RL/W/78)
- establish more explicit rules as to royalty-based financing schemes (these schemes need to be judged
against a market or commercial standard)97. (TN/RL/W/78)
- consider establishing appropriate guidelines to assist investigating authorities in conducting pass-
through analyses (where the recipient of the original "financial contribution" and the recipient of the
resulting "benefit" are alleged to be different enti ties, the investigating authorities cannot assume but,
rather, must definitively establish, a subsidy pass-through from the former to the latter).
(TN/RL/W/112)
                                                     
97 See Section 128 infra  on the SCM Agreement .TN/RL/W/143
Page 82
ARTICLE 2 - SPECIFICITY
Article 2
Specificity
2.1 In order to determine whether a subsidy, as defined in paragraph 1 of Article
1, is specific to an enterprise or industry or group of enterprises or industries
(referred to in this Agreement as "certain enterprises") within the jurisdiction of the
granting authority, the following principles shall apply:
(a) Where the granting authority, or the legislation pursuant to which
the granting authority operates, explici tly limits access to a subsidy to certain
enterprises, such subsidy shall be specific.
(b) Where the granting authority, or the legislation pursuant to which
the granting authority operates, establishes objective criteria or conditions2
governing the eligibility for, and the amount of, a subsidy, specificity shall not exist,
provided that the eligibility is automatic and that such criteria and conditions are
strictly adhered to.  The criteria or conditions must be clearly spelled out in law,regulation, or other official document, so as to be capable of verification.
(c) If, notwithstanding any appearance of non-specificity resulting from
the application of the principles laid down in subparagraphs (a) and (b), there are
reasons to believe that the subsidy may in fact be specific, other factors may be
considered.  Such factors are:  use of a subsidy programme by a limited number ofcertain enterprises, predominant use by certain enterprises, the granting of
disproportionately large amounts of subsidy to certain enterprises, and the manner in
which discretion has been exercised by the granting authority in the decision to grant
a subsidy.
3  In applying this  subparagraph, account shall be taken of the extent of
diversification of economic activities within the jurisdiction of the grantingauthority, as well as of the length of time during which the subsidy programme has
been in operation.
2.2 A subsidy which is limited to certain enterprises located within a designated
geographical region within the jurisdiction of the granting authority shall be
specific.  It is understood that the setting or change of generally applicable tax ratesby all levels of government entitled to do so shall not be deemed to be a specific
subsidy for the purposes of this Agreement.
2.3 Any subsidy falling under the provisions of Article 3 shall be deemed to be
specific.
2.4 Any determination of specificity under the provisions of this Article shall be
clearly substantiated on the basis of positive evidence.
__________________________________________________________________
2 Objective criteria or conditions, as used herein, mean criteria or conditions which are
neutral, which do not favour certain enterprises over others, and which are economic in
nature and horizontal in application, such as number of employees or size of enterprise.
3 In this regard, in particular, information on the frequency with which applications for a
subsidy are refused or approved and the reasons for such decisions shall  be considered.TN/RL/W/143
Page 83
86. Specificity
- clarify certain aspects of the current provisions on "specificity" (e.g., the meaning of the phrase
"enterprise or industry or group of enterprises or industries"). (TN/RL/W/112)TN/RL/W/143
Page 84
 ARTICLE 3 - PROHIBITION
87. Prohibited Subsidies
- clarify prohibited subsidies disciplines to ensure the equitable application of SCM Agreement
rules/disciplines among WTO Members (issue of assessment of contingency on export performance,
in the case of small domestic markets). (TN/RL/W/1)
- expand the existing category of prohibited subsidies to include those instances of government
intervention that have a similarly distortive impact on competitiveness or trade as do export and
import substitution subsidies (e.g., include in this expanded category some of the practices listed in
the "dark amber" provisions of Article 6.1 such as large domestic subsidies, subsidies to cover
operating losses by a company and direct forgiveness of debt). (TN/RL/W/78)
- consider whether more equitable and predictable rules in relation to prohibited export subsidies can
be achieved; in this regard, discuss whether the concept of levels of export competitiveness in a
product, used in the SCM Agreement  in relation to special and differential treatment, can help to
address any confusion between a product which has been subsidized contingent on export
performance, and a product which may be subsidized but, due to fluctuating domestic market
conditions, is no longer solely for the domestic market. (TN/RL/W/85)
- establish clearer rules on the conditions or facts which give grounds for a conclusion that a subsidy
is contingent ‘in fact’ upon actual or anticipated export performance. (TN/RL/W/139)Article 3
Prohibition
3.1 Except as provided in the Agreement on Agriculture, the following
subsidies, within the meaning of Article 1, shall be prohibited:
(a) subsidies contingent, in law or in fact4, whether solely or as
one of several other conditions, upon export performance, including
those illustrated in Annex I5;
(b) subsidies contingent, whether solely or as one of several
other conditions, upon the use of domestic over imported goods.
3.2 A Member shall neither grant nor maintain subsidies referred to in
paragraph 1.
______________________________________________________________
4 This standard is met when the facts demonstrate that the granting of a subsidy,
without having been made legally contingent upon export performance, is in fact tiedto actual or anticipated exportation or export earnings. The mere fact that a subsidy is
granted to enterprises which export shall not for that reason alone be considered to be
an export subsidy within the meaning of this provision.
5 Measures referred to in Annex I as not constituting export subsidies shall not be
prohibited under this or any other provision of this Agreement.TN/RL/W/143
Page 85
- make clear, in considering a range of factors (for the determination that a subsidy is contingent in
fact upon export performance), that export propensity should not be a factor taken in isolation; list a
range of factors that should be taken into account for export contingency; establish that  investigating
authorities should ensure that consideration of the facts relating to contingency on export performanceis clearly established in a countervail investigation. (TN/RL/W/139)
88. "Local Content" Subsidies
- clarify and make rules operational so that any subsidy linked to the use or purchase of domestic
industrial products, and thus, in breach of Article III.4 of the GATT 1994, is covered by the
prohibition (the fact that subsidies are available only to domestic producers would not, by itself, put
them in the prohibited category - Article III:8 b of GATT 1994). (TN/RL/W/30)
- recognize that subsidies contingent upon use of domestic over imported goods are crucial to the
process of industrialization and development of developing countries, and any prohibition on such use
of these subsidies would further disadvantage these countries. (TN/RL/W/4)TN/RL/W/143
Page 86
ARTICLE 3 / ANNEX I - ILLUSTRATIVE LIST OF EXPORT SUBSIDIES
89. Export Credits (Items (j) and (k) of Annex I)
- review items (j) and (k) of the Illustrative List of Export Subsidies in Annex I, in order to ensure a
"level playing field" among WTO Members in the area of export credits, i.e., with respect to the
"break even" test in item (j) and to the "material advantage" issue in item (k).  (TN/RL/W/5)
- address the issue of "evolutionary interpretation" of the reference to the OECD Arrangement in item
(k) of the Illustrative List of Export Subsidies in Annex I. (TN/RL/W/5)
- establish clear and consistent rules for all types of export financing. (TN/RL/W/30)
- address legitimate concerns of developing countries as far as the OECD regime on official support
for export credits is concerned. (TN/RL/W/30)
- recognize that export credits can be provided for either in the currency of the exporting country or in
foreign currency in accordance with the circumstances of each case. (TN/RL/W/120)ANNEX I
ILLUSTRATIVE LIST OF EXPORT SUBSIDIES
(…)
(j) The provision by governments (or special institutions controlled by
governments) of export credit guarantee or insurance programmes, of insurance
or guarantee programmes against increases in the cost of exported products or of
exchange risk programmes, at premium rates which are inadequate to cover thelong-term operating costs and losses of the programmes.
(k) The grant by governments (or special institutions controlled by and/or
acting under the authority of governments) of export credits at rates below those
which they actually have to pay for the funds so employed (or would have to pay
if they borrowed on international capital markets in order to obtain funds of the
same maturity and other credit terms and denominated in the same currency as
the export credit), or the payment by them of all or part of the costs incurred byexporters or financial institutions in obtaining credits, in so far as they are used to
secure a material advantage in the field of export credit terms.
Provided, however, that if a Member is a party to an international undertaking on
official export credits to which at least twelve original Members to this
Agreement are parties as of 1 January 1979 (or a successor undertaking whichhas been adopted by those original Members), or if in practice a Member applies
the interest rates provisions of the relevant undertaking, an export credit practice
which is in conformity with those provisions shall not be considered an export
subsidy prohibited by this Agreement.
(…)TN/RL/W/143
Page 87
- discuss and clarify the issue arising from certain  investigating authorities disallowing the cost-to-
government approach in determining the existence a nd extent of subsidy, when such an approach is
implicit in item (k) of the Illustrative List. (TN/RL/W/120)TN/RL/W/143
Page 88
ARTICLE 4 - REMEDIES
Article 4
Remedies
4.1 Whenever a Member has reason to believe that a prohibited subsidy is
being granted or maintained by another Member, such Member may request
consultations with such other Member.
4.2 A request for consultations under paragraph 1 shall include a statement of
available evidence with regard to the existence and nature of the subsidy inquestion.
4.3 Upon request for consultations under paragraph 1, the Member believed to
be granting or maintaining the subs idy in question shall enter into such
consultations as quickly as possible.  The purpose of the consultations shall be to
clarify the facts of the situation and to arrive at a mutually  agreed solution.
4.4 If no mutually agreed solution has been reached within 30 days
6 of the
request for consultations, any Member party to such consultations may refer thematter to the Dispute Settlement Body ("DSB") for the immediate establishment of
a panel, unless the DSB decides by consensus not to establish a panel.
4.5 Upon its establishment, the panel may request the assistance of the
Permanent Group of Experts
7 (referred to in this Agreement as the "PGE") with
regard to whether the measure in question is a prohibited subsidy.  If so requested,the PGE shall immediately review the evidence with regard to the existence and
nature of the measure in question and shall provide an opportunity for the Member
applying or maintaining the measure to demonstrate that the measure in question is
not a prohibited subsidy.  The PGE shall report its conclusions to the panel within
a time-limit determined by the panel.  The PGE's conclusions on the issue ofwhether or not the measure in question is a prohibited subsidy shall be accepted by
the panel without modification.
4.6 The panel shall submit its final report to the parties to the dispute.  The
report shall be circulated to all Members within 90 days of the date of the
composition and the establishment of the panel's terms of reference.
4.7 If the measure in question is found to be a prohibited subsidy, the panel
shall recommend that the subsidizing Member withdraw the subsidy without delay.
In this regard, the panel shall specify in its recommendation the time-period within
which the measure must be withdrawn.
4.8 Within 30 days of the issuance of the  panel's report to all Members, the
report shall be adopted by the DSB unless one of the parties to the dispute formally
notifies the DSB of its decision to appeal or the DSB decides by consensus not toadopt the report.
__________________________________________________________________
6 Any time-periods mentioned in this Article may be extended by mutual agreement.
7 As established in Article 24.TN/RL/W/143
Page 89
90. Remedies for Prohibited Subsidies / Enforcement
- explore strengthening the remedies for prohibited subsidies (currently injury to a Member's domestic
industry from these subsidies must still be shown in the context of a national countervailing duty
proceeding). (TN/RL/W/78)4.9 Where a panel report is appealed, the Appellate Body shall issue its
decision within 30 days from the date when the party to the dispute formally
notifies its intention to appeal.  When the Appellate Body considers that it cannot
provide its report within 30 days, it sh all inform the DSB in writing of the
reasons for the delay together with an es timate of the period within which it will
submit its report.  In no case shall the proceedings exceed 60 days.  The appellate
report shall be adopted by the DSB and unconditionally accepted by the partiesto the dispute unless the DSB decides by consensus not  to adopt the appellate
report within 20 days following its issuance to the Members.
8
4.10 In the event the recommendation of the DSB is not followed within thetime-period specified by the panel, which shall commence from the date of
adoption of the panel’s report or the Appellate Body’s report, the DSB shall grantauthorization to the complaining Member to take appropriate
9  countermeasures,
unless the DSB decides by consensus to reject the request.
4.11 In the event a party to the dispute requests arbitration under paragraph 6
of Article 22 of the Dispute Settlement  Understanding ("DSU"), the arbitrator
shall determine whether the countermeasures are appropriate.10
4.12 For purposes of disputes conducted pursuant to this Article, except for
time-periods specifically prescribed in this Article, time-periods applicable under
the DSU for the conduct of such disputes shall be half the time prescribed
therein.
_________________________________________________________________
8 If a meeting of the DSB is not scheduled during this period, such a meeting shall be held
for this purpose.
9 This expression is not meant to allow counte rmeasures that are disproportionate in light
of the fact that the subsidies dealt with under these provisions are prohibited. 
10 This expression is not meant to allow countermeasures that are disproportionate in light
of the fact that the subsidies dealt with under these provisions are prohibited. TN/RL/W/143
Page 90
- clarify the remedy set down in Article 4, namely  "withdrawal of the subsidy" where it has been
established that a prohibited subsidy has been provided (questions to be considered include: should
there be consistency in the application of a remedy and what is meant by “withdraw the subsidy”?  If
the subsidy agreement is based on the so-called traffi c light test according to the effect a subsidy has
on trade, would the replacement of a prohibited subsidy with an actionable subsidy “withdraw thesubsidy”?  Further, should a remedy involve retrospectivity?  If the purpose of the remedy is to bring
measures into conformity and balance rights and obligations, how is retrospectivity consistent with
this?  Where does enforcement go beyond any adverse trade effect?). (TN/RL/W/85)
- examine following issues to clarify provisions in Part III (Article 4.7) and Part V (Article 7.8) :
• Whether the context of Part III and V alters the meaning of “withdraw the subsidy”, as has
been suggested by some panels;
• Whether replacement of a prohibited subsidy with an actionable subsidy constitutes an
effective or suitable remedy;
• Whether “withdrawal of the subsidy” means removal of adverse trade effects;
• Whether retrospectivity or repayment should normally only be countenanced to the extent that
there are portions of a subsidy which are deemed allocated over future periods of time;
• Given that there is a presumption of serious trade effects where it is established that there is a
prohibited subsidy, whether there is nonetheless a need to quantify or establish the level ofserious trade effects in ‘withdrawal of the subsidy’;
• Whether ‘withdrawal of the subsidy’ should not go beyond the adverse trade effects;
• Whether SCM Articles 4.10 and 7.9 in relation to “appropriate countermeasures” provide
context to the meaning of “withdraw the subsidy”;
• Whether there should be a distinction between recurring and non-recurring subsidies;
• Whether termination of a prohibited subsidy constitutes “withdrawal”;
• Whether “withdrawal” must encompass a punitive remedy and have an “impact” and
enforcement effect on the subsidizing Member. (TN/RL/W/139)
91. Accelerated Timeframes
- consider how the special timeframes for prohibited subsidies can be reconciled with the generally
applicable timeframes in the DSU in situations where other claims of violation, in addition to those in
respect of prohibited subsidies, are also at issue, having regard to parallel negotiations currently
taking place in the Doha Round, to improve the efficiency and effectiveness of the DSU.
(TN/RL/W/112)
92. Permanent Group of Experts
- examine the functioning of the Permanent Group of Experts to determine how its advisory and
dispute settlement roles might be improved. (TN/RL/W/112)TN/RL/W/143
Page 91
ARTICLE 6 - SERIOUS PREJUDICE
Article 6
Serious Prejudice
6.1 Serious prejudice in the sense of paragraph (c) of Article 5 shall be
deemed to exist in the case of:
(a) the total ad valorem subsidization14 of a product exceeding 5 per
cent15;
(b) subsidies to cover operating losses sustained by an industry;(c) subsidies to cover operating losses sustained by an enterprise,
other than one-time measures which are non-recurrent and cannot be
repeated for that enterprise and which are given merely to provide time
for the development of long-term solutions and to avoid acute social
problems;
(d) direct forgiveness of debt, i.e. forgiveness of government-held
debt, and grants to cover debt repayment.
16
6.2 Notwithstanding the provisions of paragraph 1, serious prejudice shall
not be found if the subsidizing Member demonstrates that the subsidy in question
has not resulted in any of the effects enumerated in paragraph 3.
6.3 Serious prejudice in the sense of paragraph (c) of Article 5 may arise in
any case where one or several of the following apply:
(a) the effect of the subsidy is to displace or impede the imports of a
like product of another Member into the market of the subsidizing
Member;
(b) the effect of the subsidy is to displace or impede the exports of a
like product of another  Member from a third country market;
(c) the effect of the subsidy is a significant price undercutting by the
subsidized product as compared with the price of a like product of
another Member in the same market or significant price suppression,
price depression or lost sales in the same market;
(d) the effect of the subsidy is an increase in the world market share
of the subsidizing Member in a particular subsidized primary product or
commodity17 as compared to the average share it had during the previous
period of three years and this increase follows a consistent trend over a
period when subsidies have been granted.
_________________________________________________________________
14 The total ad valorem subsidization shal l be calculated in accordance with the
provisions of Annex IV.
15 Since it is anticipated that civil aircraft will be subject to specific multilateral rules, the
threshold in this subparagraph does not apply to civil aircraft.
16 Members recognize that where royalty-based financing for a civil aircraft programme
is not being fully repaid due to the level of actual sales falling below the level of forecastsales, this does not in itself constitute serious prejudice for the purposes of thissubparagraph.TN/RL/W/143
Page 92
6.4 For the purpose of paragraph 3(b), the displacement or impeding ofexports shall include any case in which, subject to the provisions of paragraph 7,
it has been demonstrated that there has been a change in relative shares of the
market to the disadvantage of the non-subsidized like product (over an
appropriately representative period sufficient to demonstrate clear trends in the
development of the market for the product concerned, which, in normal
circumstances, shall be at least one year).  "Change in relative shares of the
market" shall include any of the following situations:  (a) there is an increase in
the market share of the subsidized product;  (b) the market share of the
subsidized product remains constant in circumstances in which, in the absence of
the subsidy, it would have declined;  (c) the  market share of the subsidized
product declines, but at a slower rate than would have been the case in the
absence of the subsidy.
6.5 For the purpose of paragraph 3(c), price undercutting shall include any
case in which such price undercutting has been demonstrated through a
comparison of prices of the subsidized product with prices of a non-subsidized
like product supplied to the same market.  The comparison shall be made at the
same level of trade and at comparable times, due account being taken of anyother factor affecting price comparability.  However, if such a direct comparison
is not possible, the existence of price undercutting may be demonstrated on the
basis of export unit values.
6.6 Each Member in the market of which serious prejudice is alleged to have
arisen shall, subject to the provisions of paragraph 3 of Annex V, make availableto the parties to a dispute arising under Article 7, and to the panel established
pursuant to paragraph 4 of Article 7, all relevant information that can be obtained
as to the changes in market shares of the parties to the dispute as well as
concerning prices of the products involved.TN/RL/W/143
Page 93
6.7 Displacement or impediment resulting in serious prejudice shall not ariseunder paragraph 3 where any of the following circumstances exist
18 during the
relevant period:
(a) prohibition or restriction on exports of the like product from the
complaining Member or on imports from the complaining Member into
the third country market concerned;
(b) decision by an importing government operating a monopoly of
trade or state trading in the product concerned to shift, fornon-commercial reasons, imports from the complaining Member to
another country or countries;
(c) natural disasters, strikes, transport disruptions or other force
majeure  substantially affecting production, qualities, quantities or prices
of the product available for export from the complaining Member;
(d) existence of arrangements limiting exports from the complaining
Member;
(e) voluntary decrease in the availability for export of the product
concerned from the complaining Member (including, inter alia , a
situation where firms in the complaining Member have beenautonomously reallocating exports of this product to new markets);
(f) failure to conform to standards and other regulatory
requirements in the importing country.
6.8 In the absence of circumstances referred to in paragraph 7, the existence
of serious prejudice should be determined on the basis of the informationsubmitted to or obtained by the panel, including information submitted in
accordance with the provisions of Annex V.
6.9 This Article does not apply to subsidies maintained on agricultural
products as provided in Article 13 of the Agreement on Agriculture.
_______________________________________________________________________
18 The fact that certain circumstances are referred to in this paragraph does not, in itself,
confer upon them any legal status in terms of either GATT 1994 or this Agreement.
These circumstances must not be isolated, sporadic or otherwise insignificant.TN/RL/W/143
Page 94
93. Serious Prejudice Remedy / Actionable Subsidies
- consider a more viable serious prejudice remedy, especially in view of the importance of access to
third country markets for Members with relatively small domestic markets and for certain specialized
industries. (TN/RL/W/1)
- strengthen and make the serious prejudice remedy more effective. (TN/RL/W/78)- review the causation provisions. (TN/RL/W/78)
- consider reinstating and enhancing the deemed serious prejudice provision of Article 6.1.
(TN/RL/W/112)
- explore how current disciplines (paragraph 4 of Annex IV) in respect of start-up subsidy incentives,
which can have obvious trade distorting ef fects, might be improved. (TN/RL/W/112)
- consider building the recommendations on the calculation of the cost to government and ad valorem
subsidization for different types of subsidies as well as on related issues contained in the Report by the
Informal Group of Experts to the Committee on Subsidies and Countervailing Measures  on Annex IV
to the SCM Agreement  into the Agreement, if and as appropriate, with a view to improving the clarity
and effectiveness of Annex IV and, by extension, Article 6.1(a) of the SCM Agreement.
(TN/RL/W/112)
- explore how the current serious prejudice provisions might be usefully clarified and improved in
order to render the multilateral discipline more effective; for example, consideration should be given
to clarifying the subsidy "effects" requirement (including the identification of other factors that may
be contributing to export or import displacement). (TN/RL/W/112).
- clarify the circumstances listed under SCM Articl e 6.7, in particular sub-paragraph (f); consider
what standards or other regulatory requirements would be captured by this sub-paragraph.(TN/RL/W/139)TN/RL/W/143
Page 95
ARTICLE 7 - REMEDIES
94. Remedies
 - clarify the remedy "to remove the adverse effects", or eliminate it entirely and establish the
withdrawal of the subsidy as the exclusive remedy. (TN/RL/W/78)Article 7
Remedies
(…)
7.8 Where a panel report or an Appellate Body report is adopted in which
it is determined that any subsidy has resu lted in adverse effects to the interests
of another Member within the meaning of Article 5, the Member granting or
maintaining such subsidy shall take ap propriate steps to remove the adverse
effects or shall withdraw the subsidy.
(…)TN/RL/W/143
Page 96
ARTICLE 8 - IDENTIFICATION OF NON-ACTIONABLE SUBSIDIES
Article 8
Identification of Non-Actionable Subsidies
8.1 The following subsidies shall be considered as non-actionable23:
(a) subsidies which are not specific within the meaning of Article 2;
(b) subsidies which are specific within the meaning of Article 2 but
which meet all of the conditions provided for in paragraphs 2(a), 2(b) or
2(c) below.
8.2 Notwithstanding the provisions of Parts III and V, the following
subsidies shall be non-actionable:
(a) assistance for research activities conducted by firms or by higher
education or research establishments on a contract basis with firms if:24,
25,  26
_______________________________________________________________________
23 It is recognized that government assistance for various purposes is widely provided by
Members and that the mere fact that such assistance may not qualify for non-actionable
treatment under the provisions of this Article does not in itself restrict the ability of
Members to provide such assistance.
24 Since it is anticipated that civil aircraft will be subject to specific multilateral rules, the
provisions of this subparagraph do not apply to that product.
25 Not later than 18 months after the date of entry into force of the WTO Agreement, the
Committee on Subsidies and Countervailing Measures provided for in Article 24
(referred to in this Agreement as "the Committee")  shall review the operation of the
provisions of subparagraph 2(a) with a view to making all necessary modifications toimprove the operation of these provisions.  In its consideration of possible modifications,the Committee shall carefully review the definitions of the categories set forth in thissubparagraph in the light of the experience of Members in the operation of research
programmes and the work in other relevant international institutions.
26 The provisions of this Agreement do not apply to fundamental research activities
independently conducted by higher education or research establishments.  The term"fundamental research" means an enlargement of general scientific and technical
knowledge not linked to industrial or commercial objectives.TN/RL/W/143
Page 97
the assistance covers27 not more than 75 per cent of the costs of industrial
research28 or 50 per cent of the costs of pre-competitive development
activity29, 30;
and provided that such assistance is limited exclusively to:
(i) costs of personnel (researchers, technicians and other supporting
staff employed exclusively in the research activity);
(ii) costs of instruments, equipment, land and buildings used
exclusively and permanently (except when disposed of on a commercialbasis) for the research activity;
(iii) costs of consultancy and equivalent services used exclusively for t
he research activity, including bought-in research, technical
knowledge, patents, etc.;
(iv) additional overhead costs incurred directly as a result of the
research activity;
(v) other running costs (such as those of materials, supplies and the
like), incurred directly as a result of the research activity.
(b) assistance to disadvantaged regions within the territory of a Member given
pursuant to a general framework of regional development
31 and non-specific
(within the meaning of Article 2) within eligible regions provided that:
__________________________________________________________________
27 The allowable levels of non-actionable assistance referred to in this subparagraph shall
be established by reference to the total eligible costs incurred over the duration of an
individual project.
28 The term "industrial research" means planne d search or critical investigation aimed at
discovery of new knowledge, with the objective that such knowledge may be useful indeveloping new products, processes or services, or in bringing about a significantimprovement to existing products, processes or services.
29 The term "pre-competitive development activity" means  the translation of industrial
research findings into a plan, blueprint or design for new, modified or improved products,
processes or services whether intended for sale or use, including the creation of a firstprototype which would not be capable of co mmercial use.  It may further include the
conceptual formulation and design of product s, processes or services alternatives and
initial demonstration or pilot projects, provided that these same projects cannot beconverted or used for industrial application or commercial exploitation.  It does not include
routine or periodic alterations to existing products, production lines, manufacturing
processes, services, and other on-going operations even though those alterations mayrepresent improvements.
30 In the case of programmes which span industrial research and pre-competitive
development activity, the allowable level of non-actionable assistance shall not exceed the
simple average of the allowable levels of non-actionable assistance applicable to the above
two categories, calculated on the basis of all eligible costs as set forth in items (i) to (v) ofthis subparagraph.
31 A "general framework of regional development" means that regional subsidy
programmes are part of an internally consistent and generally applicable regionaldevelopment policy and that regional development subsidies are not granted in isolated
geographical points having no, or virtually no, influence on the development of a region.TN/RL/W/143
Page 98
(i) each disadvantaged region must be a clearly designatedcontiguous geographical area with a definable economic and
administrative identity;
(ii) the region is considered as disadvantaged on the basis of neutral
and objective criteria
32, indicating that the region's difficulties arise out of
more than temporary circumstances;  such criteria must be clearly spelled
out in law, regulation, or other official document, so as to be capable of
verification;
(iii) the criteria shall include a measurement of economic development
which shall be based on at least one of the following factors:
- one of either income per capita or household income per capita,
or GDP per capita, which must not be above 85 per cent of the
average for the territory concerned;
- unemployment rate, which must be at least 110 per cent of the
average for the territory concerned;
as measured over a three-year period;  such measurement,
however, may be a composite one and may include other factors.
(c) assistance to promote adaptation of existing facilities33 to new
environmental requirements imposed by law and/or regulations which result in
greater constraints and financial burden on firms, provided that the assistance:
(i) is a one-time non-recurring measure;  and
(ii) is limited to 20 per cent of the cost of adaptation;  and
(iii) does not cover the cost of replacing and operating the assisted
investment, which must be fully borne by firms;  and
(iv) is directly linked to and proportionate to a firm's planned
reduction of nuisances and pollution, and does not cover any
manufacturing cost savings which may be achieved;  and
(v) is available to all firms which can adopt the new equipment and/or
production processes.
__________________________________________________________________
32 "Neutral and objective criteria" means criteria which do not favour certain regions
beyond what is appropriate for the elimination or reduction of regional disparities withinthe framework of the regional development policy. In this regard, regional subsidyprogrammes shall include ceilings on the amount of assistance which can be granted to
each subsidized project. Such ceilings must be differentiated according to the different
levels of development of assisted regions and must be expressed in terms of investmentcosts or cost of job creation. Within such ceilings, the distribution of assistance shall besufficiently broad and even to avoid the predominant use of a subsidy by, or the granting ofdisproportionately large amounts of subsidy to, certain enterprises as provided for inArticle 2.TN/RL/W/143
Page 99
8.3 A subsidy programme for which the provisions of paragraph 2 are invoked
shall be notified in advance of its implementation to the Committee in accordance
with the provisions of Part VII.  Any such notification shall be sufficiently precise
to enable other Members to evaluate the consistency of the programme with the
conditions and criteria provided for in the relevant provisions of paragraph 2.
Members shall also provide the Committee with yearly updates of such
notifications, in particular by supplying information on global expenditure for eachprogramme, and on any modification of the programme.  Other Members shall
have the right to request information about individual cases of subsidization under
a notified programme.
34
8.4 Upon request of a Member, the Secretariat shall review a notificationmade pursuant to paragraph 3 and, where necessary, may require additionalinformation from the subsidizing Member concerning the notified programme
under review.  The Secretariat shall report its findings to the Committee.  The
Committee shall, upon request, promptly review the findings of the Secretariat (or,
if a review by the Secretariat has not been requested, the notification itself), with a
view to determining whether the conditions and criteria laid down in paragraph 2have not been met.  The procedure provided for in this paragraph shall be
completed at the latest at the first regu lar meeting of the Committee following the
notification of a subsidy programme, provided that at least two months have
elapsed between such notification and the regular meeting of the Committee.  The
review procedure described in this paragraph shall also apply, upon request, tosubstantial modifications of a programme notified in the yearly updates referred to
in paragraph 3.
8.5 Upon the request of a Member, the determination by the Committee
referred to in paragraph 4, or a failure by the Committee to make such a
determination, as well as the violation, in individual cases, of the conditions set outin a notified programme, shall be submitted to binding arbitration.   The arbitration
body shall present its conclusions to the Members within 120 days from the date
when the matter was referred to the arbitration body.  Except as otherwise
provided in this paragraph, the DSU shall apply to arbitrations conducted under
this paragraph.
__________________________________________________________________
34 It is recognized that nothing in this notification provision requires the provision of
confidential information, including confidential business information.TN/RL/W/143
Page 100
95. Non-Actionable Subsidies
- consider whether a non-actionable subsidy category should be pursued. (TN/RL/W/1)
- address the issue of non-actionable subsidies and explore the possibility of re-introducing the
concept into the SCM Agreement  in such a way as to allow its application, as measures aimed at
achieving legitimate development goals such as regional growth, technology research anddevelopment funding, production diversification and development and implementation of
environmentally sound methods of production; consider launching an exploratory process for which a
relevant basis might be the categories specified in paragraph 8 of the SCM Agreement.  (TN/RL/W/41)
- consider the following suggestions that would permit the application of non-actionable measures in
the existing categories in Article 8 of the SCM Agreement :
- to remove or lower the ceilings or benchmarks specified for each category of non-
actionable subsidies in Article 8 of the SCM Agreement ;
- to amend the wording of some of the provisions of Article 8;  for instance, the
"assistance" provided in each of the three categories set out in the Article (direct allocation of
funds) could be supplemented by other forms of financial contribution or support by agovernment body. (TN/RL/W/131)
- explore several avenues with a view to incorporating diversification of production, for example, in
the existing categories in the SCM Agreement  for the benefit of developing and least-developed
country Members; a new category of non-actionable subsidies, considered as furthering legitimatedevelopment goals, might for instance be incorporated in the SCM Agreement  together with an
indicative list of non-actionable measures, in the form of a new Annex to the Agreement.
(TN/RL/W/131)TN/RL/W/143
Page 101
ARTICLE 25 - NOTIFICATIONS
Article 25
Notifications
25.1 Members agree that, without prejudice to the provisions of paragraph 1
of Article XVI of GATT 1994, their notifications of subsidies shall be
submitted not later than 30 June of each year and shall conform to the
provisions of paragraphs 2 through 6.
25.2 Members shall notify any subsidy as defined in paragraph 1 of
Article 1, which is specific within the meaning of Article 2, granted or
maintained within their territories.
25.3 The content of notifications should be sufficiently specific to enable
other Members to evaluate the trade effects and to understand the operation of
notified subsidy programmes.  In this connection, and without prejudice to thecontents and form of the questionnaire on subsidies
54, Members shall ensure
that their notifications contain the following information:
(i) form of a subsidy (i.e. grant, loan, tax concession, etc.);
(ii) subsidy per unit or, in cases where this is not possible, the total
amount or the annual  amount budgeted for that subsidy (indicating, ifpossible, the average subsidy per unit in the previous year);
(iii) policy objective and/or purpose of a subsidy;
(iv) duration of a subsidy and/or any other time-limits attached to
it;
(v) statistical data permitting an assessment of the trade effects of
a subsidy.
25.4 Where specific points in paragraph 3 have not been addressed in a
notification, an explanation shall be provided in the notification itself.
25.5 If subsidies are granted to specific products or sectors, the notifications
should be organized by product or sector.
25.6 Members which consider that there are no measures in their territories
requiring notification under paragraph 1 of Article XVI of GATT 1994 and this
Agreement shall so inform the Secretariat in writing.
25.7 Members recognize that notification of a measure does not prejudge
either its legal status under GATT 1994 and this Agreement, the effects under
this Agreement, or the nature of the measure itself.
25.8 Any Member may, at any time, make a written request for information
on the nature and extent of any subsidy granted or maintained by another
Member (including any subsidy referred to in Part IV), or for an explanation of
the reasons for which a specific measure has been considered as not subject to
the requirement of notification.
________________________________________________________________
54 The Committee shall establish a Working Party to review the contents and form of
the questionnaire as contained in BISD 9S/193-194.TN/RL/W/143
Page 102
96. Notifications
- explore the possibility of penalizing partial or non-notifications; devise a mechanism through which
the quality and scope of notifications could be scrutinized and if failings were found or suspected a
review procedure could be generated through an expedited WTO dispute settlement procedure similar
to the one envisaged for spurious initiations or by referring the matter to an empowered Permanent
Group of Experts.  (TN/RL/W/30)
- consider reflecting in the  SCM Agreement  the approach developed by the Subsidies Committee to
implementing Members' notification obligations. (TN/RL/W/78)
- consider the SCM Committee's consensus on treatment of notifications at the May 2001 meeting; the
work initiated within the Committee in relation to  compliance and streamlining subsidy notifications
could also be examined and considered in the context of clarification and improvement of the  SCM
Agreement.  (TN/RL/W/85)
- consider eliminating or consolidating some of th e information required under the current notification
provisions (the requirement that the "trade effects" of the notified subsidy be described, for example,
is difficult if not impossible to answer accurately and, thus, is normally left unanswered by most
Members).  (TN/RL/W/78)25.9 Members so requested shall provide such information as quickly aspossible and in a comprehensive manner, and shall be ready, upon request, to
provide additional information to the requesting Member.   In particular, they
shall provide sufficient details to enable the other Member to  assess their
compliance with the terms of this Agreement.   Any Member which considers
that such information has not been provided may bring the matter to the
attention of the Committee.
25.10 Any Member which considers that any measure of another Member
having the effects of a  subsidy has not been notified in accordance with the
provisions of paragraph 1 of Article XVI of GATT 1994 and this Article may
bring the matter to the attention of such other Member.   If the alleged subsidy
is not thereafter notified promptly, such Member may itself bring the alleged
subsidy in question to the notice of the Committee.
25.11 Members shall report without delay to the Committee all preliminary
or final actions taken with respect to countervailing duties.  Such reports shall
be available in the Secretariat for inspection by other Members.  Members
shall also submit, on a semi-annual basis, reports on any countervailing duty
actions taken within the preceding six months.  The semi-annual reports shallbe submitted on an agreed standard form.
25.12 Each Member shall notify the Committee (a) which of its authorities
are competent to initiate and conduct investigations referred to in Article 11
and (b) its domestic procedures governing the initiation and conduct of such
investigations.TN/RL/W/143
Page 103
- consider ways to lessen the burden on lesser developed countries, especially those in Annex VII of
the SCM Agreement , with respect to notification obligations.98 (TN/RL/W/78)
                                                     
98 See Section 97 infra .TN/RL/W/143
Page 104
ARTICLE 27 - SPECIAL AND DIFFERENTIAL TREATMENT OF DEVELOPING COUNTRY
MEMBERS
Article 27
Special and Differential Treatment of Developing Country Members
27.1 Members recognize that subsidies may play an important role in economic
development programmes of developing country Members.
27.2 The prohibition of paragraph 1(a) of Article 3 shall not apply to:
(a) developing country Members referred to in Annex VII.
(b) other developing country Members for a period of eight years
from the date of entry into force of the WTO Agreement, subject tocompliance with the provisions in paragraph  4.
27.3 The prohibition of paragraph 1(b) of Article 3 shall not apply to
developing country Members for a period of five years, and shall not apply to least
developed country Members for a period of eight years, from the date of entry into
force of the WTO Agreement.
27.4 Any developing country Member referred to in paragraph 2(b) shall phase
out its export subsidies within the eight-year period, preferably in a progressive
manner.  However, a developing country Member shall not increase the level of its
export subsidies
55, and shall eliminate them within a period shorter than that
provided for in this paragraph when the use of such export subsidies is inconsistentwith its development needs.  If a developing country Member deems it necessary
to apply such subsidies beyond the 8-year period, it shall not later than one year
before the expiry of this period enter into consultation with the Committee, which
will determine whether an extension of this period is justified, after examining all
the relevant economic, financial and development needs of the developing countryMember in question.  If the Committee determines that the extension is justified,
the developing country Member concerned shall hold annual consultations with
the Committee to determine the necessity of  maintaining the subsidies.  If no such
determination is made by the Committee, the developing country Member shall
phase out the remaining export subsidies within two years from the end of the lastauthorized period.
27.5 A developing country Member which has reached export competitiveness
in any given product shall phase out its export subsidies for such product(s) over a
period of two years.  However, for a developing country Member which is referred
to in Annex VII and which has reached export  competitiveness in one or more
products, export subsidies on such products shall be gradually phased out over a
period of eight years.
__________________________________________________________________
55 For a developing country Member not granting export subsidies as of the date of entry
into force of the WTO Agreement, this paragraph shall apply on the basis of the level of
export subsidies granted in 1986.TN/RL/W/143
Page 105
27.6 Export competitiveness in a product exists if a developing countryMember's exports of that product have reached a share of at least 3.25 per cent inworld trade of that product for two consecutive calendar years.  Export
competitiveness shall exist either (a) on the basis of notification by the developing
country Member having reached export competitiveness, or (b) on the basis of a
computation undertaken by the Secretariat at the request of any Member.  For the
purpose of this paragraph, a product is defined as a section heading of the
Harmonized System Nomenclature.  The Committee shall review the operation of
this provision five years from the date of the entry into force of  the WTOAgreement.
27.7 The provisions of Article 4 shall not apply to a developing country
Member in the case of export  subsidies which are in conformity with the
provisions of paragraphs 2 through 5.  The relevant provisions in such a case shall
be those of Article 7.
27.8 There shall be no presumption in terms of paragraph 1 of Article 6 that a
subsidy granted by a developing country Member results in serious prejudice, as
defined in this Agreement.  Such serious prejudice, where applicable under the
terms of paragraph 9, shall be demonstrated by positive evidence, in accordance
with the provisions of paragraphs 3 through 8 of Article 6.
27.9 Regarding actionable subsidies granted or maintained by a developing
country Member other than those referred to in paragraph 1 of Article 6, action
may not be authorized or taken under Article 7 unless nullification or impairment
of tariff concessions or other obligations under GATT 1994 is found to exist as a
result of such a subsidy, in such a way as to displace or impede imports of a likeproduct of another Member into the market of the subsidizing developing country
Member or unless injury to a domestic industry in the market of an importing
Member occurs.
27.10 Any countervailing duty investigation of a product originating in a
developing country Member shall be terminated as soon as the authoritiesconcerned determine that:
(a) the overall level of subsidies granted upon the product in question
does not exceed 2 per cent of its value calculated on a per unit basis;  or
(b) the volume of the subsidized imports represents less than
4 per cent of the total imports of the like product in the importing Member,
unless imports from developing country Members whose individual shares
of total imports represent less than 4 per cent collectively account for morethan 9 per cent of the total imports of the like product in the importing
Member.
27.11 For those developing country Members within the scope of paragraph 2(b)
which have eliminated  export subsidies prior to the expiry of the period of eight
years from the date of entry into force of the WTO Agreement, and for thosedeveloping country Members referred to in Annex VII, the number in
paragraph 10(a) shall be 3 per cent rather than 2 per cent.  This provision shall
apply from the date that the elimination of export subsidies is notified to the
Committee, and for so long as export subsidies are not granted by the notifying
developing country Member.  This provision shall expire eight years from the dateof entr
y into force of the WTO A greement.TN/RL/W/143
Page 106
97. Special and Differential Treatment for Developing Country Members99
- give positive consideration to a package of S&D treatment provisions for developing countries on
the understanding that this would be for a strictly temporary period and would be drawn up only
following an agreement on rules for non-exempted c ountries; S&D treatment could be considered in
clearly defined circumstances for remedies, including countervailing duties, against certain prohibited
and actionable subsidies given by developing countries. (TN/RL/W/30)
- to take account in the course of the negotiations of the situation of small economies more vulnerable
to the harm caused by unfair trade practices, as well as the situation of developing country Members,
bearing in mind that the scope of special and differential treatment should be confined to operations
between developed countries and developing countries. (TN/RL/W/36)
- review the existing Article 27 provisions in the light of any changes in the SCM Agreement , to make
sure that effective remedies remain against injurious subsidies. (TN/RL/W/30)
- consider relieving least developed country Members (and perhaps other low income and small
economies) of their notification obligation for specific subsidies under Article 25 (review could be
conducted in the context of the Trade Policy Review Mechanism; in this process, the relevant parts of
                                                     
99 The proposals listed under this Section are those that have been specifically referred to by
participants as relating to the Special and Differentia l Treatment of Developing Country Members provision
contained in Article 27 of the SCM Agreement .  Other proposals regarding developing country Members may be
found under other Sections of this paper, such as Sections 88 and 89 supra .27.12 The provisions of paragraphs 10 and 11 shall govern any determination of
de minimis  under paragraph 3 of Article 15.
27.13 The provisions of Part III shall not apply to direct forgiveness of debts,
subsidies to cover social costs, in whatever form, including relinquishment of
government revenue and other transfer of liabilities when such subsidies are granted
within and directly linked to a privatization programme of a developing country
Member, provided that both such programme and the subsidies involved are granted
for a limited period and notified to the Committee and that the programme results ineventual privatization of the enterprise concerned.
27.14 The Committee shall, upon request by an interested Member, undertake a
review of a specific export subsidy practice of a developing country Member to
examine whether the practice is in conformity with its development needs.
27.15 The Committee shall, upon request by an interested developing country
Member, undertake a review of a specific countervailing measure to examine
whether it is consistent with the provisions of paragraphs 10 and 11 as applicable to
the developing country Member in question.TN/RL/W/143
Page 107
the review could be conducted in the Committee on Subsidies and Countervailing Measures).
(TN/RL/W/30)
- consider ways to lessen the burden on lesser developed countries, especially those in Annex VII of
the SCM Agreement , with respect to notification obligations.100 (TN/RL/W/78)
- add a new provision in Article 27.10 to provide for countervailing duties on imports from
developing countries being restricted only to that amount by which the subsidy exceeds the de
minimis  level. (TN/RL/W/4)
- amend Article 27.10 (b) to provide for countervailing duty not being imposed in the case of imports
from developing countries where the total volume of imports is negligible, i.e. 7 per cent of total
imports. (TN/RL/W/4)
- amend Article 27.2 so that the prohibition in Article 3.1 (a) does not apply to export subsidies
granted by developing countries where they account for less than 5 per cent of the f.o.b. value of theproduct. (TN/RL/W/4)
- amend Article 27.11 to provide for the de minimis  level of subsidization below which countervailing
duty shall not be imposed in case of imports from developing countries being raised above 3 per cent.
(TN/RL/W/4)
- amend Article 27.3 so that the prohibition of paragraph 1(b) of Article 3 shall not apply to
developing country Members; delete the reference to expiry of this flexibility after five/eight years
from the date of entry into force of the WTO Agreement; clarify that the provisions of the amended
Article 27.3 shall be applicable notwithstanding the provisions of any other agreement in the WTO
acquis.  (TN/RL/W/4)
- introduce a provision to address the eventuality that after reaching export competitiveness in a
particular product, subsequently the export competitiveness is lost; the discussions held on this
Implementation issue in the SCM Committee provide a useful basis for addressing this issue during
the Rules Negotiations. (TN/RL/W/120)
- remove the seeming contradiction between time-bound derogation in paragraph 27.3 from the
obligation in paragraph 1(b) of Article 3 of the SCM Agreement ( prohibition of subsidies contingent
upon the use of domestic over imported goods) and paragraph 1 of Article 2 of the Agreement on
TRIMs which prohibits measures inconsistent with paragraph 4 of Article III of GATT 1994
(National Treatment); one way of removing this co ntradiction and thus providing the intended rights
to LDCs in the unrestricted recourse to the use of local content is to provide in both Agreements for
the right as long as a country remains in the LDC status.  (Proposal refered to the NGR by the
Chairman of the General Council, letter of 20 May 2003 to the Chairman of the NGR)
- delete the word "may" from the text of Article 27.1; the provision, if amended, would read as
follows: "Members recognize that subsidies play an important role in economic development
programmes of developing country Members".  (Proposal refered to the NGR by the Chairman of the
General Council, letter of 20 May 2003 to the Chairman of the NGR)
- "inconsistent with its development needs" in Article 27.4 refers to where otherwise prohibited or
actionable subsidies would clearly not benefit any domestic industry. (Proposal refered to the NGR bythe Chairman of the General Council, letter of 20 May 2003 to the Chairman of the NGR)
                                                     
100 See Section 96 supra .TN/RL/W/143
Page 108
- it is understood that developing country Members shall not be prevented from seeking extensions on
grounds of not strictly following the time frames in Article 27.4 and the Decision on Procedures for
Extensions Under Article 27.4 for Certain Deve loping Country Members (G/SCM/39). (Proposal
refered to the NGR by the Chairman of the General Council, letter of 20 May 2003 to the Chairman of
the NGR)
- it is understood that in consultations and in any proceedings, there shall be no presumption of
serious prejudice whatsoever including on the basis of any percentage or amount of subsidisation
where developing country Members grant subsidies; and that any serious prejudice shall be
demonstrated exclusively by positive evidence. (Proposal refered to the NGR by the Chairman of the
General Council, letter of 20 May 2003 to the Chairman of the NGR)
- it is understood that nullification and impairment in cases of actionable subsidies that developing
country Members grant or maintain, shall be construed to mean only the displacement or impedimentof imports of a like product into the market of the developing country Member or injury to a domestic
industry in the market of the importing Member. (Proposal refered to the NGR by the Chairman of the
General Council, letter of 20 May 2003 to the Chairman of the NGR)
- it is understood that Article 27.13 covers any privatisation programmes undertaken within the period
from 1 January 1995 and that developing country Members may grant or maintain the subsidyprogrammes under Article 27.13 to ensure good adjustment of their economies; it is further
understood that "limited period" refers to a period of not less than 8 years. (Proposal refered to the
NGR by the Chairman of the General Council, letter of 20 May 2003 to the Chairman of the NGR)
- "interested developing country Member" in Article 27.15 shall be construed to refer to any
developing country Member regardless of any subsidy programmes maintained, on the basis thatdeveloping country Members have an abiding interest in the use and operation of subsidies due to
their importance in the rapid economic development of developing country Members. (Proposal
refered to the NGR by the Chairman of the General Council, letter of 20 May 2003 to the Chairman of
the NGR)TN/RL/W/143
Page 109
OTHER ISSUES
98. Natural Resources and Energy Pricing
- further clarify and improve the rules and remedies in the area of natural resources and energy.
(TN/RL/W/78)
99. Taxation
- work toward greater equalization in the treatment of various tax systems (direct and indirect taxation
systems) that, at least with regard to their subsidy-like effects, have only superficial differences.
(TN/RL/W/78)
100. Codification of Analytical and Quantification Methodologies
- clarify a host of measurement-related concepts, such as when and how to allocate subsidy benefits
over time, the determination of market-based interest rate benchmarks, and the attribution of subsidy
benefits to specific categories of a company's sales and among related companies; use the work of the
Informal Group of Experts on some of these topics as a useful starting-point for further discussions.
(TN/RL/W/78)
101. Traffic Light Framework
- consider whether the traffic light framework remains viable. (TN/RL/W/1)
102. Provision of Equity Capital
- strengthen disciplines with respect to the actions of any government which go against a
determination by the equity market that a company will not generate a market return. (TN/RL/W/78)
- require governments to provide prior notification to the Subsidies Committee  of any intended
provision of equity capital (this notification might require that a Member explain how the government
investment was consistent with the usual investment practice of private investors). (TN/RL/W/78)
- give consideration to certain lesser developed countries with respect to these requirements, except
perhaps, in those sectors which have been shown to be export competitive. (TN/RL/W/78)
103. Subsidies and the Environment
- address the environmental dimension of subsidies and consider further how to approach subsidies
aimed at the protection of the environment, follow ing the expiry of the "green box". (TN/RL/W/30)TN/RL/W/143
Page 110
104. Trade- and Market-Distorting Practices
- discuss and consider ideas and recommendations for addressing trade- and market-distorting
practices in the steel sector, building upon discussions among the major steel-producing nations at the
OECD. 101   (TN/RL/W/24)
105. Privatization
- examine whether the SCM Agreement  should be clarified with respect to the impact of privatization
on the benefit from prior subsidies in those circumstances in which Article 27.13 does not apply.
(TN/RL/W/130)
                                                     
101 See also documents TN/RL/W/27, TN/RL/W/49 and TN/RL/W/95.TN/RL/W/143
Page 111
II.  FISHERIES SUBSIDIES
106. Need for Improved WTO Disciplines
- improve WTO disciplines in the fisheries sector102. (TN/RL/W/3) (TN/RL/W/12)
107. Scope of Fisheries Subsidies
- determine the scope of subsidies to be negotiated in order to give subsidies of different natures and
effects on trade, environment and sustainable development, differential consideration. (TN/RL/W/9)
108. Categorization of Fisheries Subsidies
- look specifically at different categories of subsidy, their nature and impacts as well as their situation
under existing WTO disciplines (some form of categorization will be needed for that purpose;categorization schemes by some international organizations may serve as a starting point).
(TN/RL/W/58).
109. Framework for Addressing the Issue of Fisheries Subsidies
- conduct the discussion on the fisheries subsidies issue in a cross-sectoral manner, focusing on the
trade distortion aspect, as part of the clarification and improvement of the SCM Agreement  in
accordance with paragraph 28 of the Doha Ministerial Declaration. (TN/RL/W/52)
- deal with the issue of over-exploitation and IUU ( illegal, unreported and unregulated) fishing at the
regular session of the CTE, based upon the findings by international organizations with expertise in
fisheries such as the FAO. (TN/RL/W/52)
- establish, as a matter of priority, WTO rules on fisheries subsidies in line with recognized subsidy
disciplines under the SCM Agreement.  (TN/RL/W/82)
110. Non-Actionable Fisheries Subsidies
103
- define as "non-actionable" certain subsidies such as those on infrastructure construction, prevention
and control of disease, scientific research and training, fisherman's switching to other businesses, have
no adverse effect on trade, environment and sustainable development. (TN/RL/W/9)
                                                     
102 See comments on the general issue of Fisheries Subsidies in TN/RL/W/11, TN/RL/W/17,
TN/RL/W/21, TN/RL/W/52.
103 See also Section 116 infra .TN/RL/W/143
Page 112
- consider the following categories of subsidies permitted and therefore non-actionable:
• subsidies to support the retraining of fishermen, early retirement schemes and diversification;
• limited subsidies for modernization of fishing vessels to improve safety, product quality or
working conditions or to promote more environmentally friendly fishing methods (suchmodernization must not increase the ability of the vessel to catch fish);
• subsidies to fishermen and vessel owners who ha ve to temporarily stop their fishing activity,
when stoppages are due to unforeseeable circumstances such as natural disasters, or in the
framework of tie-up schemes linked to permanent capacity reduction measures in the context of
recovery plans for overexploited fish stocks;
• subsidies for the scrapping of vessels and the withdrawal of capacity. (TN/RL/W/82)
111. Expanded Category of Prohibited ("Red Light") Fisheries Subsidies / Prohibition of
Capacity Enhancing Subsidies
- consider the possibility of expanding the category of prohibited ("red light") subsidies (see SCM
Agreement , Article 3) expressly to cover those fisheries subsidies that directly promote overcapacity
and overfishing, or have other direct trade-distor ting effects; such subsidies could be categorized
either by the type of programme (e.g. programmes that are deemed to result in overcapacity or
overfishing), and/or by the fishery that they benefit (e.g. subsidies that contribute to overcapacity and
overfishing in fisheries that are already overfished). (TN/RL/W/77)
- prohibit the following types of capacity enhancing subsidies after a short transitional period:
• subsidies for marine fishing fleet renewal (e.g. construction of vessels, increase in fishing
capacity); and
• subsidies for the permanent transfer of fishing ve ssels to third countries, including through the
creation of joint enterprises with third country partners. (TN/RL/W/82)
- expressly prohibit all fisheries subsidies of a commercial nature, directly geared towards lowering
costs, increasing revenues, raising production (by enhancing capacity), or directly promotingovercapacity and overfishing; such subsidies would comprise inter alia :
• subsidies designed to transfer a country's ships for operation on the high seas or in the local
waters of a third country;
• subsidies that contribute to the purchase of ships, whether new or used;
• subsidies to help modernize an existing fleet;
• subsidies that contribute to reducing the costs of production factors;
• subsidies that generate positive discrimination in the tax treatment of the economic activity of
operators involved in the capture, processing and/or marketing of fisheries resources;TN/RL/W/143
Page 113
• subsidies that result in positive discrimination in access to credit. (TN/RL/W/115)
112. Revision of Fisheries Subsidies
- provide for the review of the lists of "prohibited"  and "permitted" subsidies, both in terms of their
operation and to consider whether they should be modified to further advance the ultimate aim, which
is to match capacity to the available fish and so contribute to the sustainable exploitation of fisheryresources (in this respect, the work of relevant international organizations, such as the FAO and/or
international fisheries management bodies, could be taken into account). (TN/RL/W/82)
113. Serious Prejudice and a Presumptively Harmful ("Dark Amber") Category
- consider a "dark amber" category of subsidies (these subsidies would be presumed to be harmful
unless the subsidizing government could affirmatively demonstrate that no overcapacity/overfishing
or other adverse trade effects have resulted from the subsidy; a "dark amber" category could bemodelled on the now expired Article 6.1 of the SCM Agreement ). (TN/RL/W/77)
- explore ways of making the existing provisions of the SCM Agreement  that pertain to serious
prejudice fully operational and effective in disciplining fisheries subsidies. (TN/RL/W/77)
- not prohibit the remaining subsidies, which have not been incorporated into the red light box,
104 to
the extent that they are sufficiently accredited and notified in the WTO; where the subsidizingMember has not fully met its notification obligations or has failed to notify the programme, it shall be
determined that that Member has the responsibility of demonstrating that the subsidy at issue does not
cause trade injury to the complaining Member. (TN/RL/W/115)
- establish that it shall be for the complaining Memb er to provide evidence of the injury with respect
to the following subsidies:
• subsidies of a social nature, the final purpose of which is to resolve problems affecting small-scale
fisheries, for the benefit of coastal communities and with a view to improving quality of life;
• subsidies relating to fisheries management, including research and administrative and other
measures, the sole purpose of which is to ensure the sustainability of hydro-biological resources
and their environment. (TN/RL/W/115)
114. Utilisation of Expertise of International Bodies
- utilise the results of the work of the OECD and FAO on fisheries subsidies in conducting discussions
at the WTO. (TN/RL/W/11)
                                                     
104 See Section 111 supra .TN/RL/W/143
Page 114
- explore ways to draw upon information about the state of fisheries stocks and similar expertise in
other organizations, including development of relationships with the UN Food and Agriculture
Organization and regional fisheries management organizations; the group could also find ways to
obtain the views of non-governmental groups and individuals with expertise, including the fisheries
industry and environmental conservation groups. (TN/RL/W/77)
115. Improved Notification of  Subsidies Programmes / Transparency
- consider ways to improve the quality of fisheries subsidies notifications under the SCM Agreement ;
this could include provision for more detailed fishery-specific information, including information
about relevant management regimes, so as to make notifications of fisheries subsidies under the SCM
Agreement  more complementary of existing fishery-related notifications in other fora (e.g. on
capacity). (TN/RL/W/77)
- discuss ways to make the fisheries subsidy notification requirement more effective. (TN/RL/W/77)
- improve the present notification rules:
• a subsidy programme meeting the terms of the "Permitted" subsidies would have to be notified to
the WTO Committee on Subsidies and Countervailing Measures to fully qualify for this category;
• the Secretariat could keep a "scoreboard" of notifications per Member and per type of
programmes; this "scoreboard" could be made publicly available. (TN/RL/W/82)
- discuss the establishment of a proper system for the notification of fisheries subsidies, bearing in
mind the following questions inter alia :
• notifications of fisheries subsidies should be complementary to the existing notifications in other
forums, in particular the FAO;
• notifications relating to fisheries subsidies should be mandatory, in particular for subsidies in the
amber category;
• the WTO Secretariat should keep a "scoreboard" of notifications received per Member and per
type of subsidy, which would be made available publicly. (TN/RL/W/115)
116. Special and Differential Treatment for Developing Country Members
- accord developing countries special and differentia l treatment while participants aim to clarify and
improve the disciplines on fisheries subsidies. (TN/RL/W/9)
- give due consideration to subsidies for fisheries development of developing countries as long as
these subsidies do not harm sustainable use of fisheries resources (for instance, consideration shouldbe given from the viewpoint of subsistence and food security in local communities to fisheries
subsidies provided to coastal small-scale fisheries); however, as such special and differential
treatment of developing countries is not confined within the fisheries sector, it should be discussed as
a generic matter of the SCM Agreement.  (TN/RL/W/11)TN/RL/W/143
Page 115
- draw up rules in the context of Article 27 of the SCM Agreement  which take special account of the
distinct needs of developing countries in fisheries. (TN/RL/W/82)
- clarify Article 1 of the ASCM to explicitly exclude the following from definition of subsidy, for
small vulnerable coastal states:
(1) Access Fees and Development Assistance  - any development assistance granted to
small vulnerable coastal states by developed or more advanced developing countries
to facilitate sustainable management.
(2) Fiscal Incentives to Domestication and Fisheries Development  - incentives applied by
small vulnerable coastal states for the development and domestication of their
fisheries.
(3) Artisanal Fisheries  - those measures undertaken by governments of small vulnerable
coastal states to assist their artisanal fisheries sector.  (TN/RL/W/136)TN/RL/W/143
Page 116
III.  COUNTERVAILING MEASURES
ARTICLE 11 - INITIATION AND SUBSEQUENT INVESTIGATION
Article 11
Initiation and Subsequent Investigation
11.1 Except as provided in paragraph 6, an investigation to determine the
existence, degree and effect of any alleged subsidy shall be initiated upon a
written application by or on behalf of the domestic industry.
11.2 An application under paragraph 1 shall include sufficient evidence of the
existence of (a) a subsidy and, if possible, its amount, (b) injury within the
meaning of Article VI of GATT 1994 as interpreted by this Agreement, and (c) a
causal link between the subsidized imports and the alleged injury.  Simple
assertion, unsubstantiated by relevant evidence, cannot be considered sufficient
to meet the requirements of this paragraph.  The application shall contain such
information as is reasonably available to the applicant on the following:
(i) the identity of the applicant and a description of the volume and
value of the domestic production of the like product by the applicant.
Where a written application is made on behalf of the domestic industry,
the application shall identify the industry on behalf of which the
application is made by a list of all known domestic producers of the likeproduct (or associations of domestic producers of the like product) and,
to the extent possible, a description of the volume and value of domestic
production of the like product accounted for by such producers;
(ii) a complete description of the allegedly subsidized product, the
names of the country or countries of origin or export in question, theidentity of each known exporter or foreign producer and a list of known
persons importing the product in question;
(iii) evidence with regard to the existence, amount and nature of the
subsidy in question;
(iv) evidence that alleged injury to a domestic industry is caused by
subsidized imports through the effects of the subsidies;  this evidence
includes information on the evolution of the volume of the allegedly
subsidized imports, the effect of these imports on prices of the like
product in the domestic market and the consequent impact of the imports
on the domestic industry, as demonstrated by relevant factors and indices
having a bearing on the state of the domestic industry, such as those
listed in paragraphs 2 and 4 of Article 15.
11.3 The authorities shall review the accuracy and adequacy of the evidence
provided in the  application to determine whether the evidence is sufficient to
justify the initiation of an investigation.TN/RL/W/143
Page 117
11.4 An investigation shall not be initiated pursuant to paragraph 1 unless theauthorities have determined, on the basis of an examination of the degree of
support for, or opposition to, the application expressed
38 by domestic producers
of the like product, that the application has been made by or on behalf of the
domestic industry.39 The application shall be considered to have been made "by
or on behalf of the domestic industry" if it is supported by those domestic
producers whose collective output constitutes more than 50 per cent of the total
production of the like product produced by that portion of the domestic industryexpressing either support for or opposit ion to the application.  However, no
investigation shall be initiated when domestic producers expressly supporting the
application account for less than 25 per cent of total production of the like
product produced by the domestic industry.
11.5 The authorities shall avoid, unless a decision has been made to initiate an
investigation,  any publicizing of the application for the initiation of  an
investigation.
11.6 If, in special circumstances, the authorities concerned decide to initiate
an investigation without having received a written application by or on behalf of
a domestic industry for the initiation of such investigation, they shall proceedonly if they have sufficient evidence of the existence of a subsidy, injury and
causal link, as described in paragraph 2, to justify the initiation of an
investigation.
11.7 The evidence of both subsidy and injury shall be considered
simultaneously (a) in the decision whether or not to initiate an investigation and
(b) thereafter, during the course of the investigation, starting on a date not later
than the earliest date on which in accordance with the provisions of this
Agreement provisional measures may be applied.
11.8 In cases where products are not imported directly from the country of
origin but are exported to the importing Member from an intermediate country,the provisions of this Agreement shall be fully applicable and the transaction or
transactions shall, for the purposes of this Agreement, be regarded as having
taken place between the country of origin and the importing Member.
_________________________________________________________________
38 In the case of fragmented industries involving an exceptionally large number of
producers, authorities may determine support and opposition by using statistically valid
sampling techniques.
39 Members are aware that in the territory of certain Members employees of domestic
producers of the like product or representatives of those employees may make or support
an application for an investigation under paragraph 1.TN/RL/W/143
Page 118
117. Initiation Standards
- clarify the rules/disciplines pertaining to the initiation of investigations.105 (TN/RL/W/1)
- focus on the problem of initiation standards where, e.g., successive cases are opened in respect of
subsidies which have been found to have already expired or that are no longer used. (TN/RL/W/30)
118. Definition of Product Under Investigation
- provide a more rational and disciplined framework to determine the scope of “product under
investigation,” so that countervailing measures are applied only to those products found to be
subsidized and causing injury. (TN/RL/W/19)
- define appropriate criteria for determining the “product under investigation” to limit arbitrary
expansions of product scope. (TN/RL/W/19)
119. Standing Rules
-  establish that applications should be supported by at least more than 50 per cent of the total
domestic production. (TN/RL/W/19)
                                                     
105 See Section 31 supra  on the Anti-Dumping Agreement .11.9 An application under paragraph 1 shall be rejected and an investigation
shall be terminated promptly as soon as the authorities concerned are satisfied
that there is not sufficient evidence of ei ther subsidization or of injury to justify
proceeding with the case.  There shall be immediate termination  in cases where
the amount of a subsidy is de minimis  , or where the volume of subsidized
imports, actual or potential, or the injury, is negligible.  For the purpose of this
paragraph, the amount of the subsidy shall be considered to be de minimis  if the
subsidy is less than 1 per cent ad valorem.
11.10 An investigation shall not hinder the procedures of customs clearance.
11.11 Investigations shall, except in special circumstances, be concluded
within one year, and in no case more than 18 months, after their initiation.TN/RL/W/143
Page 119
- discuss the standing requirement for the initiati on of an investigation to determine whether the
concept of "standing" is appropriately defined to ensure that domestic producers representing a
relatively small proportion of the domestic production of like products cannot successfully apply for
an investigation.106 (TN/RL/W/47)
- consider requiring that, in cases where an application is made on behalf of a domestic industry by
one or more industry associations, that the members of the industry association(s) be identified in the
application, with a statement of support for the application.107 (TN/RL/W/47)
120. Initiation and Publicization of the Application
- make clear how the obligation to notify the Gove rnment of the exporting Member (in Article 11.5)
can be reconciled with the obligation to avoid publicizing the application concerned.108
(TN/RL/W/132)
                                                     
106 See Section 33 supra  on the Anti-Dumping Agreement .
107 See Section 33 supra  on the Anti-Dumping Agreement.
108 See Section 35 supra on the Anti-Dumping Agreement .TN/RL/W/143
Page 120
ARTICLE 12 - EVIDENCE
121. Availability of Relevant Information from National Authorities
- enhance provisions concerning timely information and feedback (currently, there is no definition of
what timely is and no specific guidance for national authorities).109 (TN/RL/W/35)
- give a definition of the term "timely", in order to clarify the period of time involved and establish a
fixed interval, so as to guarantee due process for the parties involved and transparency throughout the
proceeding, thereby avoiding different interpretations of the same provision by the competentauthorities of each Member.
110 (TN/RL/W/132)
- discuss the issue of providing access to non-confidential information; for example, consider ways in
which interested parties could be granted access to all non-confidential information as soon as it is
submitted to national authorities, regardless of whether the national authorities ultimately rely upon
the information for purposes of their determination.111 (TN/RL/W/35)
122. Maintenance of a Public Record
- evaluate how a mechanism for providing access to non-confidential information used by national
authorities in an investigation could operate (e.g. maintaining a public record of all non-confidential
information submitted by the parties and all memoranda adopted or approved by the pertinentauthority that explain the factual or legal bases fo r its determination or provide pertinent findings and
conclusions in support of that determination).
112 (TN/RL/W/35)
                                                     
109 See Section 40 supra  on the Anti-Dumping Agreement .
110 See Section 40 supra  on the Anti-Dumping Agreement.
111 See Section 40 supra  on the Anti-Dumping Agreement .
112 See Section 41 supra  on the Anti-Dumping Agreement .Article 12
Evidence
 (…)
12.3 The authorities shall whenever practicable provide timely opportunities
for all interested Members and interested parties to see all information that is
relevant to the presentation of their cases, that is not confidential as defined inparagraph 4, and that is used by the authorities in a countervailing duty
investigation, and to prepare presentations on the basis of this information.
 (…)TN/RL/W/143
Page 121
123. Protection and Disclosure of Confidential Information
- discuss whether each Member should have in place a system to allow access for appropriate persons
to confidential information; such a system must in corporate appropriate measures to ensure the proper
protection of confidential information. 113 (TN/RL/W/35)
                                                     
113 See Section 42 supra  on the Anti-Dumping Agreement .Article 12
Evidence
 (…)
12.4 Any information which is by nature confidential (for example, because its
disclosure would be of significant competitive advantage to a competitor or because
its disclosure would have a significantly adverse effect upon a person supplying the
information or upon a person from whom the  supplier acquired the information), orwhich is provided on a confidential basis by parties to an investigation shall, upon
good cause shown, be treated as such by the authorities.   Such information shall not
be disclosed without specific permission of the party submitting it.
42
12.4.1 The authorities shall require interested Members or interestedparties providing confidential information to furnish non-confidential
summaries thereof.  These summaries shal l be in sufficient detail to permit a
reasonable understanding of the substance of the information submitted inconfidence.  In exceptional circumstances, such Members or parties may
indicate that such information is not susceptible of summary.  In such
exceptional circumstances, a statement of the reasons why summarization is
not possible must be provided.
12.4.2 If the authorities find that a request for confidentiality is not
warranted and if the supplier of the information is either unwilling to make
the information public or to authorize its disclosure in generalized or
summary form, the authorities may disregard such information unless it can
be demonstrated to their satisfaction from appropriate sources that the
information is correct.
43
(…)
___________________________________________________________________
42 Members are aware that in the territory of certain Members disclosure pursuant to a
narrowly-drawn protective order may be required.
43 Members agree that requests for confidentia lity should not be arbitrarily rejected.
Members further agree that the investigating authority may request the waiving ofconfidentiality only regarding inform ation relevant to the proceedings.TN/RL/W/143
Page 122
- consider establishing requirements for Members to maintain specific procedures to protect
confidential information from unauthorised disclosure.114 (TN/RL/W/35)
124. Conduct of Verifications
- discuss steps to make verification procedures clearer (e.g. authorities could provide exporting
Members and their firms with detailed outlines prior to verification specifying what topics will be
covered and what type of supporting documentation will be required; a report on the verification
findings should be issued to all interested parties as soon as possible).115 (TN/RL/W/35)
                                                     
114 See Section 42 supra  on the Anti-Dumping Agreement .
115 See Section 43 supra  on the Anti-Dumping Agreement .Article 12
Evidence
 (…)
12.6 The investigating authorities may carry out investigations in the
territory of other Members as required, provided that they have notified in good
time the Member in question and unless that Member objects to the
investigation.   Further, the investigating authorities may carry outinvestigations on the premises of a firm and may examine the records of a firm
if (a) the firm so agrees and (b) the Member in question is notified and does not
object.   The procedures set forth in Annex VI shall apply to investigations on
the premises of a firm.  Subject to the requirement to protect confidential
information, the authorities shall make the results of any such investigations
available, or shall provide disclosure thereof pursuant to paragraph 8, to the
firms to which they pertain and may make such results available to the
applicants.
(…)TN/RL/W/143
Page 123
125. Facts Available
- establish symmetry between the provisions of the Anti-Dumping Agreement on facts available
(Annex II of the Anti-Dumping Agreement ) and the SCM Agreement , which does not elaborate on the
matter.116  (TN/RL/W/19)
- agree that there should be analogous provisions within the SCM Agreement  relating to
countervailing duty measures to reflect corresponding provisions in the Anti-Dumping Agreement , for
example, clarification of facts available under SCM Agreement  Article 12.7.117 (TN/RL/W/85)
- apply the Anti-Dumping Agreement Annex II procedures to countervailing duty investigations with a
few modifications in order to adapt it to the language and concepts of the SCM Agreement (For
instance, where Annex II of the Anti-Dumping Agreement  reads "interested parties", it should be read
"interested Members and/or interested parties"; where Annex II reads "normal value", it should be
read "amount of subsidy"; and, of course, where Annex II reads "Paragraph 8 of Article 6", it should
read "Paragraph 12 of Article 7"; as "independent sources" are concerned, mention, for instance,Members' notifications to WTO and public reports of the agencies responsible for programs).
118
(TN/RL/W/19)
                                                     
116 See Section 157 infra on the  SCM Agreement  and Section 44 supra  on the Anti-Dumping
Agreement .
117 See Section 157 infra .
118 See Section 157 infra .Article 12
Evidence
 (…)
12.7 In cases in which any interested Member or interested party refuses
access to, or otherwise does not provide, necessary information within a
reasonable period or significantly impedes the investigation, preliminary and
final determinations, affirmative or negative, may be made on the basis of the
facts available.
(…)TN/RL/W/143
Page 124
126. Disclosure / Evidence
- consider whether the SCM Agreement  should be clarified as to what constitutes "sufficient time for
parties to defend their interests" as well as to what  constitutes adequate disclosure of the "essential
facts" in the context of Article 12.8 of the Agreement.119 (TN/RL/W/98)
-  address the lack of indication of the period of time necessary for the parties to make their comments
in defence of their interests and the lack of an indicative list of the elements which the communication
should contain, with a view to standardizing the crit eria and avoiding significant differences between
one investigation and another, depending on the Member concerned.120 (TN/RL/W/132)
- consider whether a requirement might be warranted for a disclosure meeting for the authorities to
review with the interested parties, upon request, how the dumping margins and countervailing duty
rates were calculated.121 (TN/RL/W/130)
                                                     
119 See Section 45 supra  on the Anti-Dumping Agreement .
120 See Section 45 supra  on the Anti-Dumping Agreement .
121 See Section 45 supra  on the Anti-Dumping Agreement .Article 12
Evidence
 (…)
12.8 The authorities shall, before a final determination is made, inform all
interested Members and interested parties of the essential facts under consideration
which form the basis for the decision whether to apply definitive measures.   Such
disclosure should take place in sufficient time for the parties to defend their
interests.
(…)TN/RL/W/143
Page 125
127. Interested Parties
- consider taking industrial users and consumer organizations into account in the definition of
"interested parties" in the SCM Agreement , with a view to securing them the opportunity, if they so
wish, to fully participate in countervailing duty investigations since their initiation.122 (TN/RL/W/104)
                                                     
122 See Section 49 supra  on the Anti-Dumping Agreement .Article 12
Evidence
 (…)
12.9 For the purposes of this Agreement, "interested parties" shall include:
(i) an exporter or foreign producer or the importer of a product subject
to investigation, or a trade or business association a majority of the members of
which are producers, exporters or importers of such product;  and
(ii) a producer of the like product in the importing Member or a trade
and business association a majority of the members of which produce the like
product in the territory of the importing Member.
This list shall not preclude Members from allowing domestic or foreign parties other
than those mentioned above to be included as interested parties.
(…)TN/RL/W/143
Page 126
ARTICLE 14 -  CALCULATION OF THE AMOUNT OF SUBSIDY IN TERMS OF THE
BENEFIT TO THE RECIPIENT
128. Calculation of the Amount of a Subsidy in Terms of the Benefit to the Recipient
- clarify the rules/disciplines pertaining to the calculation of amounts of subsidy. (TN/RL/W/1)Article 14
Calculation of the Amount of a Subsidy in Terms
of the Benefit to the Recipient
For the purpose of Part V, any method used by the investigating authority to
calculate the benefit to the recipient conferred pursuant to paragraph 1 of
Article 1 shall be provided for in the national legislation or implementing
regulations of the Member concerned and its application to each particular caseshall be transparent and adequately explained.   Furthermore, any such method
shall be consistent with the following guidelines:
 (a) government provision of equity capital shall not be considered as
conferring a benefit, unless the investment decision can be regarded asinconsistent with the usual investment practice (including for the
provision of risk capital) of private investors in the territory of that
Member;
(b) a loan by a government shall not be considered as conferring a
benefit, unless there is a difference between the amount that the firmreceiving the loan pays on the government loan and the amount the firm
would pay on a comparable commercial loan which the firm could
actually obtain on the market.   In this case the benefit shall be the
difference between these two amounts;
(c) a loan guarantee by a government shall not be considered asconferring a benefit, unless there is a difference between the amount that
the firm receiving the guarantee pays on a loan guaranteed by the
government and the amount that the firm would pay on a comparable
commercial loan absent the government guarantee.   In this case the
benefit shall be the difference between these two amounts adjusted forany differences in fees;
(d) the provision of goods or services or purchase of goods by a
government shall not be considered as conferring a benefit unless the
provision is made for less than adequate remuneration, or the purchase is
made for more than adequate remuneration.   The  adequacy of
remuneration shall be determined in relation to prevailing market
conditions for the good or service in question in the country of provisionor purchase (including price, quality, availability, marketability,
transportation and other conditions of purchase or sale).TN/RL/W/143
Page 127
- establish further and more detailed guidelines concerning the quantification of amounts of subsidy
(e.g., in respect of royalty-based financing)123. (TN/RL/W/112)
- amend the "chapeau" of Article 14, so that it mirrors the language of its title; provide that, for the
purpose of Part V of the SCM Agreement , investigating authorities shall calculate the amount of the
subsidy in terms of the benefit conferred to the recipient (producer/exporter) and do so on a productunit basis. (TN/RL/W/19)
- establish that the obligation of transparency foreseen in the "chapeau"
124 applies both to the method
of calculation of the benefit and to the method of calculation of the amount of the subsidy.
(TN/RL/W/19)
- use the work undertaken by the Informal Group of Experts on calculation of ad valorem
subsidization as a basis for the examination and setting of further priorities for potential consensus
and acceptable practice/guidelines, for the purposes of Part V of the SCM Agreement.  (TN/RL/W/85)
129. Additional Guidelines to Article 14
- include additional guidelines to Article 14 on:
(i) deduction of expenses and export taxes
(ii) appropriate denominator for the calculation of subsidy amount
(iii) subsidy tied to the acquisition of capital goods (amount of subsidy spread over the useful life
of the assets).125 (TN/RL/W/19)
- establish specific criteria, such as those mentioned in Article 6.10 of the Anti-Dumping Agreement ,
for the use of samples in the calculation of the amount of the subsidy.126 (TN/RL/W/19)
- clarify, improve and further develop the specific terms of Article 14(b) regarding the provision of
government loans with a view to facilitating determination of whether there has been inappropriate
government intervention in such situations as those involving direct government intervention in
bankruptcy or near bankruptcy proceedings, and i ndustry restructuring (clarification and improvement
in this regard could include certain notification/transparency requirements in those instances in which
a government, government-owned or –controlled entity, or "public body", becomes involved inassisting a financially troubled company).  (TN/RL/W/78)
- clarify and improve the specific provisions of Article 14(a) regarding the provision of equity capital;
specifically, address practical issues that can arise in analyzing equity infusions – such as the role of
independent studies, the specific factors that should be considered when examining the financial
health and prospects of a company, and the use of initial and secondary stock prices. (TN/RL/W/78)
                                                     
123 See Section 85 supra .
124 Specific language is proposed in document TN/RL/W/19, page 4, to amend the "chapeau" of
Article 14.
125 Specific language is proposed in document TN/RL/W/19, page 5, to add new items to Article 14.
126 See Sections 157 and 164 infra .TN/RL/W/143
Page 128
ARTICLE 15 - DETERMINATION OF INJURY
130. Like Product
- clarify the definition of like product to limit the scope of product types that can be considered as a
single "like product".127 (TN/RL/W/47)
131. Market Segmentation
- consider whether Article 15 of the SCM Agreement  should be clarified to state expressly that
investigating authorities have the discretion to engage in sectoral analysis of the impact of subsidized
imports on the domestic industry in appropriate circumstances, as long as their analysis of impact
encompasses the entire domestic industry.128 (TN/RL/W/130)
                                                     
127 See Section 16 supra  on the Anti-Dumping Agreement .
128 See Section 21 supra  on the Anti-Dumping Agreement.Article 15
Determination of Injury
15.1 A determination of injury for purposes of Article VI of GATT 1994 shall
be based on positive evidence and involve an objective examination of both (a)
the volume of the subsidized imports and the effect of the subsidized imports on
prices in the domestic market for like products46 and (b) the consequent impact of
these imports on the domestic producers of such products.
(…)
_________________________________________________________________
46 Throughout this Agreement the term "like product" ("produit similaire") shall be
interpreted to mean a product which is identical, i.e. alike in all respects to the product
under consideration, or in the absence of such a product, another product which, although
not alike in all respects, has characteristics closely resembling those of the product underconsideration.TN/RL/W/143
Page 129
132. Cumulative Assessment of Injury / Cumulation
- establish which factors should be considered in the evaluation of "conditions of competition"
between imported products from different origins and between them and the like domestic product.
(TN/RL/W/19)
- consider whether the Anti-Dumping Agreement  and the SCM Agreement  should be clarified to
expressly provide for the cumulation of dumped imports with subsidized imports, in order to assess
the effects of the unfair imports on the domestic industry.129 (TN/RL/W/98)
                                                     
129 See Section 22 supra  on the Anti-Dumping Agreement and Section  157  infra on the  SCM
Agreement .Article 15
Determination of Injury45
(…)
15.3 Where imports of a product from more than one country are
simultaneously subject to countervailing duty investigations, the investigating
authorities may cumulatively assess the effects of such imports only if theydetermine that (a) the amount of subsidization established in relation to the
imports from each country is more than de minimis  as defined in paragraph 9 of
Article 11 and the volume of imports from each country is not negligible and (b)
a cumulative assessment of the effects of the imports is appropriate in light of the
conditions of competition between the imported products and the conditions ofcompetition between the imported products and the like domestic product.
(…)
_______________________________________________________________________
45 Under this Agreement the term "injury" shall, unless otherwise specified, be taken to
mean material injury to a domestic industry, threat of material injury to a domesticindustry or material retardation of the establishment of such an industry and shall beinterpreted in accordance with the provisions of this Article.TN/RL/W/143
Page 130
133. Examination of Impact
- consider whether Article 15.4 of the SCM Agreement  should be clarified to provide greater certainty
both to investigating authorities and to the parties that appear before them concerning the scope of the
authority's obligation to examine "relevant factors a nd indices" other than the ones explicitly listed in
Article 15.4 of the SCM Agreement.130 (TN/RL/W/130)
- address whether there should be an express limitation on the authority's obligation with respect to
such factors that were never brought to the authority's attention during the course of its
investigation.131 (TN/RL/W/130)
                                                     
130 See Section 25 supra  on the Anti-Dumping Agreement .
131 See Section 25 supra  on the Anti-Dumping Agreement.Article 15
Determination of Injury
(…)
15.4 The examination of the impact of the subsidized 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, including actual and potential
decline in output, sales, market share, profits, productivity, return oninvestments, or utilization of capacity;  factors affecting domestic prices;  actual
and potential negative effects on cash flow, inventories, employment, wages,
growth, ability to raise capital or investments and, in the case of agriculture,
whether there has been an increased burden on government support programmes.
This list is not exhaustive, nor can one or several of these factors necessarily give
decisive guidance.
(…)TN/RL/W/143
Page 131
134. Causation
- consider clarifying Article 15.5 with respect to the issue of causation.132 (TN/RL/W/98)
                                                     
132 See Section 26 supra  on the Anti-Dumping Agreement .Article 15
Determination of Injury
(…)
15.5 It must be demonstrated that the subsidized imports are, through the
effects47 of subsidies,  causing injury within  the meaning of this Agreement.  The
demonstration of a causal relationship between the subsidized imports and the
injury to the domestic industry shall be based on an examination of all relevantevidence before the authorities.  The au thorities shall also examine any known
factors other than the subsidized imports which at the same time are injuring the
domestic industry, and the injuries caused by these other factors must not be
attributed to the subsidized imports.  Factors which may be relevant in this respect
include, inter alia , the volumes and prices of non-subsidized imports of the
product in question, contraction in demand or changes in the patterns of
consumption, trade restrictive practices of and competition between the foreignand domestic producers, developments in technology and the export performance
and productivity of the domestic industry.
(…)
_________________________________________________________________
47 As set forth in paragraphs 2 and 4.TN/RL/W/143
Page 132
135. Condition of the Domestic Industry in any Threat of Material Injury Analysis
- consider whether the Agreement should be clarified to address investigating authorities'
consideration of the current condition of the domestic industry in an analysis of the threat of material
injury.133 (TN/RL/W/130)
                                                     
133 See Section 28 supra  on the Anti-Dumping Agreement .Article 15
Determination of Injury
(…)
15.7 A determination of a threat of material injury shall be based on facts and
not merely on allegation, conjecture or remote possibility.   The change in
circumstances which would create a situation in which the subsidy would cause
injury must be clearly foreseen and imminent.   In making a determination
regarding the existence of a threat of mate rial injury, the investigating authorities
should consider, inter alia , such factors as:
(i) nature of the subsidy or subsidies in question and the trade effects
likely to arise therefrom;
(ii) a significant rate of increase of subsidized imports into the
domestic market indicating the likelihood of substantially increased importation;
(iii) sufficient freely disposable, or an imminent, substantial increase
in, capacity of the exporter indicating the likelihood of substantially increasedsubsidized exports to the importing Member's market, taking into account the
availability of other export markets to absorb any additional exports;
(iv) whether imports are entering at prices that will have a significant
depressing or suppressing effect on domestic prices, and would likely increase
demand for further imports;  and
(v) inventories of the product being investigated.
No one of these factors by itself can necessarily give decisive guidance but the
totality of the factors considered must lead to the conclusion that further
subsidized exports are imminent and that, unless protective action is taken,
material injury would occur.
(…)TN/RL/W/143
Page 133
ARTICLE 16 - DEFINITION OF DOMESTIC INDUSTRY
Article 16
Definition of Domestic Industry
16.1 For the purposes of this Agreement, the term "domestic industry" shall,
except as provided in paragraph 2, be interpreted as referring to the domestic
producers as a whole of the like products or  to those of them whose collective output
of the products constitutes a major proportion of the total  domestic production of
those products, except that when producers are related48 to the exporters or
importers or are themselves importers of the allegedly subsidized product or a likeproduct from other countries, the term "domestic industry" may be interpreted as
referring to the rest of the producers.
16.2. In exceptional circumstances, the territory of a Member may, for the
production in question, be divided into two or more competitive markets and the
producers within each market may be regarded as a separate industry if (a) the
producers within such market sell all or almost all of their production of the product
in question in that market, and  (b) the demand in that market is not to any
substantial degree supplied by producers of the product in question located
elsewhere in the territory.   In such circumstances, injury may be found to exist even
where a major portion of the total domestic industry is not injured, provided there isa concentration of subsidized imports into such an isolated market and provided
further that the subsidized imports are causing injury to the producers of all or
almost all of the production within such market.
16.3 When the domestic industry has been interpreted as referring to the
producers in a certain area,  i.e. a market as defined in paragraph 2, countervailingduties shall be levied only on the products in question consigned for final
consumption to that area.   When the constitutional law of the importing Member
does not permit the levying of countervailing duties on such a basis, the importing
Member may levy the countervailing duties without limitation only if (a) the
exporters shall have been given an opportunity to cease exporting at subsidizedprices to the area concerned or otherwise give assurances pursuant to Article 18, and
adequate assurances in this regard have not been promptly given, and  (b) such duties
cannot be levied only on products of specific producers which supply the area in
question.
16.4 Where two or more countries have reached under the provisions of
paragraph 8(a) of Article XXIV of GATT 1994 such a level of integration that they
have the characteristics of a single, unified market, the industry in the entire area ofintegration shall be taken to be the domestic industry referred to in paragraphs 1 and
2.
16.5 The provisions of paragraph 6 of Article 15 shall be applicable to this
Article.
___________________________________________________________________
48 For the purpose of this paragraph, producers shall be deemed to be related to exporters or
importers only if (a) one of them directly or indirectly controls the other;  or (b) both of them
are directly or indirectly controlled by a third person;  or (c) together they directly or
indirectly control a third person, provided th at there are grounds for believing or suspecting
that the effect of the relationship is such as to cause the producer concerned to behavedifferently from non-related producers.  For the purpose of this paragraph, one shall bedeemed to control another when the former is legally or operationally in a position toexercise restraint or direction over
 the latter.TN/RL/W/143
Page 134
136. Definition of Domestic Industry
- provide more specific parameters as to what minimum percentage of the domestic production can be
considered to be "a major proportion".134 (TN/RL/W/47)
- clarify Article 16 concerning the definition of the domestic industry to address the special
circumstances raised when domestic and foreign producers have limited selling seasons.135
(TN/RL/W/72)136
- consider whether Article 16.1 of the SCM Agreement  should be clarified to specifically prohibit the
practice of limiting the injury analysis solely to those firms which supported the application.137
(TN/RL/W/98)
- consider whether the SCM Agreement  needs to be clarified to ensure that an investigating authority
can satisfy its obligation to obtain reliable and objective data on a domestic industry containing an
extremely large number of producers within the confines of an investigation of limited duration(issues that may be addressed in such a clarificat ion include reliance by investigating authorities on
information from industry groups or governmental statistical authorities).
138 (TN/RL/W/98)
- consider establishing clearer criteria for the definition of the term "major proportion".139
(TN/RL/W/104)- consider establishing that the domestic industry shall be taken as a major proportion of the total
domestic production only when it is not possible for the authority to obtain information regarding the
"domestic producers as a whole of the like products".
140  (TN/RL/W/104)
- consider whether the asymmetry between the Anti-Dumping  and the SCM Agreement  with respect to
excluding from the domestic industry domestic producers who are themselves importers of a like
product from other countries  should remain (Article 16.1 of the SCM Agreement  allows for the
exclusion of domestic producers who are themselves importers of a like product from other
countries ).141 (TN/RL/W/104)
                                                     
134 See Section 30 supra on the  Anti-Dumping  Agreement .
135 See Section 30 supra  on the Anti-Dumping Agreement and Section 162  infra on the  SCM
Agreement .
.
136 See Section 30 supra  on the Anti-Dumping Agreement and Section 162  infra on the  SCM
Agreement .
.
137 See Section 30 supra  on the Anti-Dumping Agreement .
138 See Section 30 supra  on the Anti-Dumping Agreement and Section 164  infra on the  SCM
Agreement .
139 See Section 30 supra  on the Anti-Dumping Agreement .
140 See Section 30 supra  on the Anti-Dumping Agreement .
141 See Section 30 supra  on the Anti-Dumping Agreement and Section 157  infra on the  SCM
Agreement .TN/RL/W/143
Page 135
ARTICLE 17 - PROVISIONAL MEASURES
137. Provisional Measures
- consider harmonizing the provisions of the Anti-Dumping  and SCM Agreement  regarding the
application of provisional measures, especially the prohibition of collecting provisional duties;consider whether the exporter should be allowed to request a two-month extension of the period of
application in a countervailing duty investigation.
142   (TN/RL/W/104)
                                                     
142 See Section 50 supra  on the Anti-Dumping Agreement and Section 157  infra on the  SCM
Agreement .Article 17
Provisional Measures
17.1 Provisional measures may be applied only if:
(a) an investigation has been initiated in accordance with the
provisions of Article 11,  a public notice has been given to that effect and
interested Members and interested parties have been given adequate
opportunities to submit information and make comments;
(b) a preliminary affirmative determination has been made that a
subsidy exists and that there is injury to a domestic industry caused by subsidized
imports;  and
(c) the authorities concerned judge such measures necessary to
prevent injury being caused during the investigation.
17.2 Provisional measures may take the form of provisional countervailing
duties guaranteed by cash deposits or bonds equal to the amount of the
provisionally calculated amount of subsidization.
17.3 Provisional measures shall not be applied sooner than 60 days from the
date of initiation of the investigation.
17.4 The application of provisional measures shall be limited to as short a
period as possible, not exceeding four months.
17.5 The relevant provisions of Article 19 shall be followed in the application
of provisional measures.TN/RL/W/143
Page 136
ARTICLE 18 - UNDERTAKINGS
Article 18
Undertakings
18.1 Proceedings may49 be suspended or terminated without the imposition
of provisional measures or countervailing duties upon receipt of satisfactory
voluntary undertakings under which:
(a) the government of the exporting Member agrees to eliminate or
limit the subsidy or take other measures concerning its effects;  or
(b) the exporter agrees to revise its prices so that the investigating
authorities are satisfied that the injurious effect of the subsidy is
eliminated.   Price increases under such undertakings shall not be
higher  than necessary to eliminate the amount of the subsidy.     It isdesirable  that the price increases be less than the amount of the
subsidy if such  increases would be adequate to remove the injury to
the domestic industry.
18.2 Undertakings shall not be sought or accepted unless the authorities of
the importing Member  have made a preliminary affirmative determination ofsubsidization and injury caused by such subsidization and, in case of
undertakings from exporters, have obtained the consent of the exporting
Member.
18.3 Undertakings offered need not be accepted if the authorities of the
importing Member consider their acceptance impractical, for example if the
number of actual or potential exporters is too great, or for other reasons,
including reasons of general policy.  Should the case arise and wherepracticable, the authorities shall provide to the exporter the reasons which have
led them to consider acceptance of an undertaking as inappropriate, and shall,
to the extent possible, give the exporter an opportunity to make comments
thereon.
_______________________________________________________________
49 The word "may" shall not be interpreted to allow the simultaneous continuation of
proceedings with the implementation of unde rtakings, except as provided in paragraph
4.TN/RL/W/143
Page 137
138. Price Undertakings143
- define what should constitute “satisfa ctory voluntary undertakings”. (TN/RL/W/19)
- define “reasons of general policy” in Article 18.3. (TN/RL/W/19)
                                                     
143 See Section 51 supra  on the Anti-Dumping Agreement .TN/RL/W/143
Page 138
ARTICLE 19 - IMPOSITION AND COLLECTION OF COUNTERVAILING DUTIES
Article 19
Imposition and Collection of Countervailing Duties
19.1 If, after reasonable efforts have been made to complete consultations, a
Member makes a final determination of the existence and amount of the subsidy
and that, through the effects of the subsidy, the subsidized imports are causing
injury, it may impose a countervailing duty in accordance with the provisions of
this Article unless the subsidy or subsidies are withdrawn.
19.2 The decision whether or not to impose a countervailing duty in cases
where all requirements for the imposition have been fulfilled, and the decision
whether the amount of the countervailing duty to be imposed shall be the full
amount of the subsidy or less, are decisions to be made by the authorities of the
importing Member.   It is desirable that the imposition should be permissive in the
territory of all Members, that the duty should be less than the total amount of thesubsidy if such lesser duty would be adequate to remove the injury to the domestic
industry, and that procedures should be established which would allow the
authorities concerned to take due account of representations made by domestic
interested parties
50 whose interests might be adversely affected by the imposition
of a countervailing duty.
19.3 When a countervailing duty is imposed in respect of any product, such
countervailing duty shall be levied, in the appropriate amounts in each case, on a
non-discriminatory basis on imports of such product from all sources found to be
subsidized and causing injury, except as to imports from those sources which have
renounced any subsidies in question or from which undertakings under the termsof this Agreement have been accepted.   Any exporter whose exports are subject to
a definitive countervailing duty but who was not actually investigated for reasons
other than a refusal to  cooperate, shall be entitled to an expedited review in order
that the investigating authorities promptly establish an individual countervailing
duty rate for that exporter.
19.4 No countervailing duty shall be levied
51 on any imported product in excess
of the amount of the subsidy found to exist, calculated in terms of subsidization
per unit of the subsidized and exported product.
__________________________________________________________________
50 For the purpose of this paragraph, the term "domestic interested parties" shall include
consumers and industrial users of the imported product subject to investigation.
51 As used in this Agreement "levy" shall mean the definitive or final legal assessment or
collection of a duty or tax.TN/RL/W/143
Page 139
139. De minimis  Rule in Article 11.9 and Its Relation With Article 19
- remedy the omission of a de minimis  rule in Article 19.  (TN/RL/W/19)
 - establish that no countervailing duties shall be collected when the amount of the subsidy is found to
be de minimis , both on a prospective and on a retrospective basis.  (TN/RL/W/19)
140. Accrual of Interest
- consider whether changes to the Agreement may be necessary to address the lack of a provision
requiring payment of interest on any excess monies collected and held by the importing Member.144
(TN/RL/W/98)
141. "All-Others" Rate
- consider what clarification could be appropriately made in the SCM Agreement  in regard of all-
others rate.145 (TN/RL/W/72)
142. Lesser Duty146
- make the use of the "lesser duty" rule mandatory. (TN/RL/W/19)
143. Exclusion of Companies
- consider whether the Agreement need to be clar ified specifically to ensure that any examined
exporter or producer found not to have received a countervailable subsidy during an investigation maynot be covered by any measure which results from that investigation.
147 (TN/RL/W/98)
144. Refund or Reimbursement of the Duty Paid in Excess
- consider whether the Anti-Dumping  and SCM Agreement  should be equally precise in the provisions
regarding reimbursement of duties paid in excess. 148 (TN/RL/W/104)
                                                     
144 See Section 55 supra  on the Anti-Dumping Agreement .
145 See Section 57 supra  on the Anti-Dumping Agreement .
146 See Section 52 supra  on the Anti-Dumping Agreement .
147 See Section 53 supra  on the Anti-Dumping Agreement .TN/RL/W/143
Page 140
145. Favoured Exporter Treatment
- consider whether changes to the Agreement should be made to specifically prohibit the practice of
excluding by name, ab initio , certain favoured exporters from any investigation and from coverage of
any eventual countervailing measure, even though they produce merchandise like that which is underinvestigation.
149 (TN/RL/W/98)
                                                                                                                                                                    
148 See Section 56 supra  on the Anti-Dumping Agreement and Section 157 infra  on the SCM
Agreement .
149 See Section 47 supra  on the Anti-Dumping Agreement .TN/RL/W/143
Page 141
ARTICLE 19 AND 21 – REVIEWS
Article 19
Imposition and Collection of Countervailing Duties
(…)
19.3 When a countervailing duty is imposed in respect of any product,
such countervailing duty shall be levied, in the appropriate amounts in each
case, on a non-discriminatory basis on imports of such product from allsources found to be subsidized and causing injury, except as to imports from
those sources which have renounced any subsidies in question or from
which undertakings under the terms of this Agreement have been accepted.
Any exporter whose exports are subject to a definitive countervailing duty
but who was not actually investigated for reasons other than a refusal tocooperate, shall be entitled to an expedited review in order that the
investigating authorities promptly establish an individual countervailing
duty rate for that exporter.
(…)TN/RL/W/143
Page 142
Article 21
Duration and Review of Countervailing Duties and Undertakings
(…)
21.2 The authorities shall review the need for the continued imposition of the
duty, where warranted, on their own initiative or, provided that a reasonable periodof time has elapsed since the imposition of the definitive countervailing duty, upon
request by any interested party which submits positive  information substantiating
the need for a review.  Interested parties shall have the right to request the
authorities to examine whether the continued imposition of the duty is necessary to
offset subsidization, whether the injury would be likely to continue or recur if theduty were removed or varied, or both.  If, as a result of the review under this
paragraph, the authorities determine that the countervailing duty is no longer
warranted, it shall be terminated immediately.
21.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive
countervailing duty shall be terminated on a date not later than five years from its
imposition (or from the date of the most recent review under paragraph 2 if that
review has covered both subsidization and injury, or under this paragraph), unlessthe authorities determine, in a review initiated before that date on their own
initiative or upon a duly substantiated request made by or on behalf of the
domestic industry within a reasonable period of time prior to that date, that the
expiry of the duty would be likely to lead to continuation or recurrence of
subsidization and injury.
52 The duty may remain in force pending the outcome of
such a review.
(…)
__________________________________________________________________
52 When the amount of the countervailing duty is assessed on a retrospective basis, a
finding in the most recent assessment proceeding that no duty is to be levied shall not by
itself require the authorities to terminate the definitive duty.TN/RL/W/143
Page 143
146. Reviews
(Article 19.3 – countervailing duty assessment)
(Article 21.2 - revocation reviews)
(Article 21.3 – sunset reviews)
- clarify the rules/disciplines pertaining to the review of existing countervailing measures.
(TN/RL/W/1)
- spell out more clearly the requirements for extending the life of a measure for a further 5 years.
(TN/RL/W/30)
- establish that the duration of reviews shall be  limited to a maximum of 12 months. (TN/RL/W/19)
- apply, in the case of reviews, the same rule s as those used in the initial investigations.
(TN/RL/W/19)
- clarify the Agreement to stipulate which, if any, provisions that were originally intended to apply to
initial investigations also apply to the various re view provisions under the Agreement; in cases where,
because of the fundamental differences between initial investigations and reviews, certain provisions
of the Agreement cannot be reasonably applied to reviews, consideration should be given to providing
rules that apply specifically to reviews.150 (TN/RL/W/47)
- clarify the circumstances that might lead to the continuation of a measure, and provide an indicative
list of factors that authorities should consider in determining whether the expiry of the duty would be
likely to lead to continuation or recurrence of subsidization and injury.151 (TN/RL/W/47)
- apply the procedures of notification and consultation as established by Article 13.1 to reviews.
(TN/RL/W/19)
- clarify that the expression "by or on behalf of the domestic industry" in Article 21.3 should be
understood as in Article 11.4. (TN/RL/W/19)
- determine whether  the SCM Agreement needs to be clarified in order to prevent misuse of the
special provisions for new shippers.152 (TN/RL/W/72)
- consider whether there should be a greater symmetry between the provisions of Article 19.3 of the
SCM Agreement  and Article 9.5 of the Anti-Dumping Agreement  with regard to the basis on which
such reviews must be carried out.153 (TN/RL/W/104)
                                                     
150 See Section 58 supra  on the Anti-Dumping Agreement .
151 See Section 58 supra  on the Anti-Dumping Agreement .
152 See Section 58 supra  on the Anti-Dumping Agreement .
153 See Section 58 supra  on the Anti-Dumping Agreement  and Section 157 infra  on the SCM
Agreement .TN/RL/W/143
Page 144
ARTICLE 20 - RETROACTIVITY
Article 20
Retroactivity
20.1 Provisional measures and countervailing duties shall only be applied to
products which enter for consumption after the time when the decision under
paragraph 1 of Article 17 and paragraph 1 of Article 19, respectively, enters into
force, subject to the exceptions set out in this Article.
20.2 Where a final determination of injury (but not of a threat thereof or of a
material retardation of the establishment of an industry) is made or, in the case of a
final determination of a threat of injury, where the effect of the subsidized imports
would, in the absence of the provisional measures, have led to a determination of
injury, countervailing duties may be levied retroactively for the period for which
provisional measures, if any, have been applied.
20.3 If the definitive countervailing duty is higher than the amount guaranteed
by the cash deposit or bond, the difference shall not be collected.   If the definitive
duty is less than the amount guaranteed by the cash deposit or bond, the excess
amount shall be reimbursed or the bond released in an expeditious manner.
20.4 Except as provided in paragraph 2, where a determination of threat of
injury or material retardation is made (but no injury has yet occurred) a definitive
countervailing duty may be imposed only from the date of the determination of
threat of injury or material retardation, and any cash deposit made during the
period of the application of provisional measures shall be refunded and any bonds
released in an expeditious manner.
20.5 Where a final determination is negative, any cash deposit made during the
period of the application of provisional measures shall be refunded and any bonds
released in an expeditious manner.
20.6 In critical circumstances where for the subsidized product in question the
authorities find that injury which is difficult to repair is caused by massive importsin a relatively short period of a product benefiting from subsidies paid or bestowed
inconsistently with the provisions of GATT 1994 and of this Agreement and where
it is deemed necessary, in order to preclude the recurrence of such injury, to assess
countervailing duties retroactively on those imports, the definitive countervailing
duties may be assessed on imports which were entered for consumption not more
than 90 days prior to the date of application of provisional measures.TN/RL/W/143
Page 145
147. Retroactivity
- consider further developing the provisions of the SCM Agreement  as far as retroactivity is
concerned. (TN/RL/W/104)
- consider whether the SCM Agreement  should mirror Article 10.8 of the Anti-Dumping Agreement  in
order to establish an important time-limit for the retroactive application of definitive duties.154
(TN/RL/W/104)
- consider whether the end result of the discussions on the issue of retroactivity should reflect a
symmetry between the Anti-Dumping  and the SCM Agreement.155 (TN/RL/W/104)
148. Critical Circumstances
- consider clarifying what provisional steps are appropriate to preserve the right to impose duties
retroactively (where there is a finding of critical circumstances); clarify and improve Article 20.6 inorder to make it more effective (provide a sufficient remedy).
156 (TN/RL/W/72)
                                                     
154 See Section 59 supra  on the Anti-Dumping Agreement  and Section 157 infra  on the SCM
Agreement .
155 See Section 59 supra  on the Anti-Dumping Agreement  and Section 157 infra  on the SCM
Agreement .
156 See Section 59 supra  on the Anti-Dumping Agreement .TN/RL/W/143
Page 146
ARTICLE 22 - PUBLIC NOTICE AND EXPLANATIONS OF DETERMINATIONS
Article 22
Public Notice and Explanation of
Determinations
22.1 When the authorities are satisfied that there is sufficient evidence to justify
the initiation  of an investigation pursuant to Article 11, the Member or Membersthe products of which are subject to such investigation and other interested parties
known to the investigating authorities to have an interest therein shall be notified
and a public notice shall be given.
22.2 A public notice of the initiation of an investigation shall contain, or
otherwise make available through a separate report
53, adequate information on the
following:
(i) the name of the exporting country or countries and the product
involved;
(ii) the date of initiation of the investigation;
(iii) a description of the subsidy practice or practices to be
investigated;
(iv) a summary of the factors on which the  allegation of injury is
based;
(v) the address to which representations by interested Members and
interested parties should be directed;  and
(vi) the time-limits allowed to interested Members and interested
parties for making their views known.
22.3 Public notice shall be given of any preliminary or final determination,
whether affirmative or negative, of any decision to accept an undertaking pursuant
to Article 18, of the termination of such an undertaking, and of the termination of a
definitive countervailing duty.  Each such notice shall set forth, or otherwise make
available through a separate report, in sufficient detail the findings and conclusionsreached on all issues of fact and law considered material by the investigating
authorities.  All such notices and reports shall be forwarded to the Member or
Members the products of which are subject to such determination or undertaking
and to other interested parties known to have an interest therein.
__________________________________________________________________
53 Where authorities provide information and explanations under the provisions of this
Article in a separate report, they shall ensure  that such report is readily available to the
public.TN/RL/W/143
Page 147
22.4 A public notice of the imposition of provisional measures shall set forth,or otherwise make available through a separate report, sufficiently detailedexplanations for the preliminary determinations on the existence of a subsidy and
injury and shall refer to the matters of fact and law which have led to arguments
being accepted or rejected.  Such a notice or report shall, due regard being paid
to the requirement for the protection of confidential information, contain in
particular:
(i) the names of the suppliers or, when this is impracticable, the
supplying countries involved;
(ii) a description of the  product which is sufficient for customs
purposes;
(iii) the amount of subsidy established and the basis on which the
existence of a subsidy has been determined;
(iv) considerations relevant to the injury determination as set out in
Article 15;
(v) the main reasons leading to the determination.
22.5 A public notice of conclusion or suspension of an investigation in the
case of an affirmative determination providing for the imposition of a definitive
duty or the acceptance of an undertaking shall contain, or otherwise makeavailable through a separate report, all relevant information on the matters of fact
and law and reasons which have led to the imposition of final measures or the
acceptance of an undertaking, due regard being paid to the requirement for the
protection of confidential information.  In particular, the notice or report shall
contain the information described in paragraph 4, as well as the reasons for theacceptance or rejection of relevant arguments or claims made by interested
Members and by the exporters and importers.
22.6 A public notice of the termination or suspension of an investigation
following the acceptance of an undertaking pursuant to Article 18 shall include,
or otherwise make available through a separate report, the non-confidential partof this undertaking.
22.7 The provisions of this Article shall apply mutatis mutandis  to the
initiation and completion of reviews pursuant to Article 21 and to decisions
under Article 20 to apply duties retroactively.TN/RL/W/143
Page 148
149. Public Notice and Explanation of Determinations / Transparency
- consider ways to promote greater disclosure of decisions and calculations performed; for example,
investigating authorities could be required to give detailed descriptions of decisions made, the facts on
which those decisions were based and the calculation methodology applied to determine thecountervailing duty rate.
157 (TN/RL/W/35)
- lay down guidelines with respect to the level of detail required in determinations.158 (TN/RL/W/132)
                                                     
157 See Section 61 supra  on the Anti-Dumping Agreement .
158 See Section 61 supra  on the Anti-Dumping Agreement .TN/RL/W/143
Page 149
ARTICLE 23 - JUDICIAL REVIEW
150. Judicial Review
- discuss whether Members should provide additional information on procedures within their
respective countries for pursuing legal recourse in a countervailing duty case (e.g. identify the court or
other judicial system put in place and explain how that legal system operates).159 (TN/RL/W/35)
                                                     
159 See Section 62 supra  on the Anti-Dumping Agreement .Article 23
Judicial Review
Each Member whose national legislation contains provisions on
countervailing  duty measures shall maintain judicial, arbitral or administrative
tribunals or procedures for the purpose, inter alia , of the prompt review of
administrative actions relating to final determinations and reviews of
determinations within the meaning of Article 21.  Such tribunals or proceduresshall be independent of the authorities responsible for the determination or
review in question, and shall provide all in terested parties who participated in the
administrative proceeding and are directly and individually affected by the
administrative actions with access to review.TN/RL/W/143
Page 150
ARTICLE 32 - OTHER FINAL PROVISIONS
151. Detailed National Legislation/Regulation
- provide the Negotiating Group on Rules with a comprehensive overview of how Members have
applied the procedural fairness provisions of the Agreement in their national laws, regulations and
practices, as a starting point in the discussion on principles and procedures that could be adapted into
the Agreement.160 (TN/RL/W/35)
- encourage Members to provide binding regulations or other administrative guidelines that give the
necessary details about the procedures their authorities use to conduct investigations.161
(TN/RL/W/35)
                                                     
160 See Section 65 supra  on the Anti-Dumping Agreement .
161 See Section 65 supra  on the Anti-Dumping Agreement .Article 32
Other Final Provisions
(…)
32.5 Each Member shall take all necessary steps, of a general or particular
character, to ensure, not later than the date of entry into force of the WTO
Agreement for it, the conformity of its laws, regulations and administrative
procedures with the provisions of this Agreement as they may apply to theMember in question.
32.6 Each Member shall inform the Comm ittee of any changes in its laws and
regulations relevant to this Agreement and in the administration of such laws and
regulations.
32.7 The Committee shall review annually the implementation and operation of
this Agreement, taking into account the objectives thereof.  The Committee shall
inform annually the Council for Trade in Goods of developments during the period
covered by such reviews.
(…)TN/RL/W/143
Page 151
ANNEXES II AND III
ANNEX II
GUIDELINES ON CONSUMPTION OF INPUTS IN THE PRODUCTION PROCESS61
I
1. Indirect tax rebate schemes can allow for exemption, remission or
deferral of prior-stage cumulative indirect taxes levied on inputs that are
consumed in the production of the exported product (making normal allowance
for waste).   Similarly, drawback schemes can allow for the remission ordrawback of import charges levied on inputs that are consumed in the
production of the exported product (making normal allowance for waste).
2. The Illustrative List of Export Subsidies in Annex I of this Agreement
makes reference to the term "inputs that are consumed in the production of the
exported product" in paragraphs (h) and (i).  Pursuant to paragraph (h), indirect
tax rebate schemes can constitute an export subsidy to the extent  that they
result in exemption, remission or deferral of prior-stage cumulative indirecttaxes in excess of the amount of such taxes actually levied on inputs that are
consumed in the production of the exported product.   Pursuant to paragraph (i),
drawback schemes can constitute an export subsidy to the extent  that they
result in a remission or drawback of import charges in excess of those actually
levied on inputs that are consumed in the production of the exported product.Both paragraphs stipulate that normal allowance for waste must be made in
findings regarding consumption of inputs in the production of the exported
product.   Paragraph (i) also provides for substitution, where appropriate.
II
In examining whether inputs are consumed in the production of the
exported product, as part of a countervailing duty investigation pursuant to this
Agreement, investigating authorities should proceed on the following basis:
1. Where it is alleged that an indirect tax rebate scheme, or a drawback
scheme, conveys a subsidy by reason of over-rebate or excess drawback of
indirect taxes or import charges on inputs consumed in the production of theexported product, the investigating authorities should first determine whether
the government of the exporting Member has in place and applies a system or
procedure to confirm which inputs are consumed in the production of the
exported product and in what amounts.   Where such a system or procedure is
determined to be applied, the investigat ing authorities should then examine the
system or procedure to see whether it is reasonable, effective for the purpose
intended, and based on generally accepted commercial practices in the countryof export.   The investigating authorities may deem it necessary to carry out, in
accordance with paragraph 6 of Article 12, certain practical tests in order to
verify information or to satisfy themselves that the system or procedure is being
effectively applied.
______________________________________________________________
61 Inputs consumed in the production pro cess are inputs physically incorporated,
energy, fuels and oil used in the production process and catalysts which are consumed
in the course of their use to obtain the exported product.TN/RL/W/143
Page 152
2. Where there is no such system or procedure, where it is not reasonable,
or where it is instituted and considered reasonable but is found not to be applied
or not to be applied effectively, a further examination by the exporting Memberbased on the actual inputs involved would need to be carried out in the context
of determining whether an excess payment occurred.   If the investigating
authorities deemed it necessary, a further examination would be carried out in
accordance with paragraph 1.
3. Investigating authorities should treat inputs as physically incorporated
if such inputs are used in the production process and are physically present in
the product exported.   The Members note that an input need not be present in
the final product in the same form in which it entered the production process.
4. In determining the amount of a particular input that is consumed in the
production of the exported product, a "normal allowance for waste" should be
taken into account, and such waste should be treated as consumed in the
production of the exported product.   The term "waste" refers to that portion ofa given input which does not serve an independent function in the production
process, is not consumed in the production of the exported product (for reasons
such as inefficiencies) and is not recovered, used or sold by the same
manufacturer.
5. The investigating authority's determination of whether the claimed
allowance for waste is "normal" should take into account the production
process, the average experience of the industry in the country of export, and
other technical factors, as appropriate.   The investigating authority should bear
in mind that an important question is whether the authorities in the exporting
Member have reasonably calculated the amount of waste, when such an amountis intended to be included in the tax or duty rebate or remission.
ANNEX III
GUIDELINES IN THE DETERMINATION OF SUBSTITUTION
DRAWBACK SYSTEMS AS EXPORT SUBSIDIES
I
Drawback systems can allow for the refund or drawback of import
charges on inputs which are consumed in the production process of another
product and where the export of this latter product contains domestic inputs
having the same quality and characteristics as those substituted for the importedinputs.  Pursuant to paragraph (i) of the Illustrative List of Export Subsidies in
Annex I, substitution drawback systems can  constitute an export subsidy to the
extent that they result in an excess drawback of the import charges levied
initially on the imported inputs for which drawback is being claimed.
II
In examining any substitution drawback system as part of a
countervailing duty investigation pursuant to this Agreement, investigatingauthorities should proceed on the following basis:TN/RL/W/143
Page 153
152. Verification System for Drawback and Substitution Drawback Schemes
- establish a presumption that a reasonable and effective verification system is in existence wherever
standard input-output norms or similar averaging procedures are developed fairly and systematically
for determining the average amount of various inputs required for the manufacture of one unit of the1. Paragraph (i) of the Illustrative List stipulates that home market inputsmay be substituted for imported inputs in the production of a product for export
provided such inputs are equal in quantity to, and have the same quality andcharacteristics as, the imported inputs being substituted.   The existence of a
verification system or procedure is important because it enables the government
of the exporting Member to ensure and demonstrate that the quantity of inputs
for which drawback is claimed does not exceed the quantity of similar products
exported, in whatever form, and that there is not drawback of import charges inexcess of those originally levied on the imported inputs in question.
2. Where it is alleged that a substitution drawback system conveys a
subsidy, the investigating authorities should first proceed to determine whether
the government of the exporting Member has in place and applies a verification
system or procedure.   Where such a system or procedure is determined to be
applied, the investigating authorities should then examine the verification
procedures to see whether they are reasonable, effective for the purposeintended, and based on generally accepted commercial practices in the country
of export.   To the extent that the procedures are determined to meet this test
and are effectively applied, no subsidy should be presumed to exist.   It may be
deemed necessary by the investigating authorities to carry out, in accordance
with paragraph 6 of Article 12, certain practical tests in order to verifyinformation or to satisfy themselves that the verification procedures are being
effectively applied.
3. Where there are no verification procedures, where they are not
reasonable, or where such procedures are instituted and considered reasonable
but are found not to be actually applied or not applied effectively, there may bea subsidy.   In such cases a further examination by the exporting Member based
on the actual transactions involved would need to be carried out to determine
whether an excess payment occurred.   If  the investigating authorities deemed it
necessary, a further examination would be carried out in accordance with
paragraph 2.
4. The existence of a substitution drawback provision under which
exporters are allowed to select particular import shipments on which drawback
is claimed should not of itself be considered to convey a subsidy.
5. An excess drawback of import charges in the sense of paragraph (i)
would be  deemed to exist where governments paid interest on any monies
refunded under their drawback schemes, to the extent of the interest actually
paid or payable.TN/RL/W/143
Page 154
final product and are used to determine the amount payable to the exporter on account of remission of
indirect taxes or import duties. (TN/RL/W/120)
153. Capital Goods and Consumables to be Included in the Definition of Inputs Consumed
- amend footnote 61 of the SCM Agreement  to include capital goods and consumables in the list of
goods that are consumed in the process of production. (TN/RL/W/120)
154. No Obligation for the Exporter Concerned to Import the Inputs
-   clarify Annex III to the SCM Agreement  to the extent that sale of the entitlement to obtain the duty
free imported inputs in substitution drawback scheme s would not be considered a subsidy, provided
such inputs are imported within two years and sale of such entitlement is not made at a premium.
(TN/RL/W/120)TN/RL/W/143
Page 155
OTHER ISSUES
155. Circumvention
- negotiate uniform procedures to address the circumvention of countervailing duty measures.162
(TN/RL/W/50)
156. Duty Refund
- consider having special dispute settlement provisions for the SCM Agreement  in cases where the
imposition of duties under this agreement has been found to be inconsistent with the provisions of the
agreement; these new provisions would require the return of countervailing duties or duty deposits in
cases where a Member's compliance action with a DSB decision results in the measure being
withdrawn, or a partial return of duties or duty deposits where the amount of duties/deposits that
would have been collected under a WTO-compliant measure is less than the amounts actuallycollected.
163 (TN/RL/W/47)
157. Harmonization of the Anti-Dumping Agreement  and the SCM Agreement  164
- address divergences between similar provisions of the Anti-Dumping and the SCM Agreements , so
that, where appropriate, differences in similar provisions of the two agreements are eliminated.(TN/RL/W/47)
- agree that there should be analogous provisions within the SCM Agreement  relating to
countervailing duty measures to reflect corresponding provisions in the Anti-Dumping Agreement , for
example, clarification of facts available under SCM Agreement  Article 12.7.
165 (TN/RL/W/85)
- harmonize, where possible and appropriate, the provisions of the SCM Agreement  and Anti-Dumping
Agreement  (e.g., whereas the SCM Agreement  provides expedited reviews for any exporter that was
not actually investigated, the Anti-Dumping Agreement  restricts expedited reviews to new shippers).
(TN/RL/W/112)
158. Reducing the Cost of Investigations
- identify areas where increased procedural fairness can reduce costs of investigations.166
(TN/RL/W/35)
- explore standardizing verification outlines and the structure of verification reports.167 (TN/RL/W/35)
                                                     
162 See Section  66 supra  on the Anti-Dumping Agreement .
163 See Section 67 supra  on the Anti-Dumping Agreement .
164 See Section 68 supra  on the Anti-Dumping Agreement and Sections 125, 129, 136, 137, 144 and 146
on the  SCM Agreement .
165 See Section 125 supra .
166 See Section 69 supra  on the Anti-Dumping Agreement .
167 See Section 69 supra  on the Anti-Dumping Agreement  and Section 164 infra  on the SCM
Agreement.TN/RL/W/143
Page 156
- explore the possibility of model/standard questionnaires which are to be applied by Members
carrying out AD investigations; examine whether or not it would be appropriate to have simplified
questionnaires for SMEs.168 (TN/RL/W/138)
- explore whether and to what extent standard procedures for on-spot verifications would help (the
provisions of Annex I of the Anti-Dumping Agreement  are a good starting-point for further
clarifications in this respect). (TN/RL/W/138)
- discuss whether the periods set out in Article 5.10 of the Anti-Dumping Agreement  could be
significantly shortened (this discussion would also have to reflect that shorter deadlines impose
greater discipline on investigating authorities and interested parties). (TN/RL/W/138)
- examine whether or not there should be mandatory deadlines for review investigations and whether
these deadlines could be significantly shorter than the ones which are currently applicable for new
investigations. (TN/RL/W/138)
- discuss whether the current ADA should be clarified by explicitly forbidding the mandatory
representation by lawyers of a co-operating party. (TN/RL/W/138)
- provide clear rules as to how non-confidential summaries should be prepared; give guidance with
regard to all areas where non-confidential summaries have to be submitted including for transaction-
by-transaction listings and information on cost of production; provide for the possibility of a review ofsuch summary, e.g. by a "Permanent Group of Experts" type of body serviced by the WTO
Secretariat; ask Members to establish domestic rules allowing for independent review of non-
confidential summaries upon request by an interested party; built upon Article 13 of the Anti-
Dumping Agreement  as a basis for this option. (TN/RL/W/138)
- clarify rules on disclosure (Art. 6.9 of the Anti-Dumping Agreement ); any rules on disclosure should
aim at defining the minimum information to be given. (TN/RL/W/138)
- provide a clear methodological fr amework for reviews. (TN/RL/W/138)
- design new rules on injury analysis which give more precise guidance; examine whether one could
find straightforward rules for a number of typical "extreme" cases (this could be achieved by
providing guidance to the application of the factors listed in Article 3.2 and Article 3.4 of the Anti-
Dumping Agreement ; such guidance could be obtained by introducing more quantitative elements
where possible). (TN/RL/W/138)
159. Swift Control Mechanism for Initiations
- consider establishing "fast track initiation panels", which, ideally, would issue their
recommendations before the actual imposition of measures.  Procedures for fast track panels could
contain e.g. the following elements:
• The grounds on which initiations can be challenged could be limited to a few key elements of the
initiation.  For instance the following three as pects could be subject to review: standing of
complainants (Article 11.4), formal requirements fo r the application (Article 11.2 (i) to (iv)), and
                                                     
168 Proposals submitted in document TN/RL/W/138 and listed under this heading  refer to the Anti-
Dumping Agreement  but apply, mutatis mutandis , to countervailing duty investigations and measures (see
document TN/RL/W/138, page 1).TN/RL/W/143
Page 157
accuracy and adequacy of evidence concerning subsidisation, injury and causal link (Article
11.3)
• Shortened period for consultation before the establishment of the fast-track panel
• Only one written submission and one hearing
• Shorter deadlines for submissions
• No interim review stage
• Shortened standard period for issuance of the report to the Parties and for its circulation to the
other Members
• Obligation on the panel to issue sugges tions on how to implement recommendations
(alternatively, if a violation is found, a panel shall  recommend the termination of the measure)
• Short and standard "reasonable period of time" for implementation.169 (TN/RL/W/67)
- consider providing for "binding arbitration", which could cover e.g. absence of evidence (i.e. any of
the items listed in Article 11.2) or missing invitation for consultations of the exporting country
concerned (Article 13.1).  Arbitration should be requested quickly (perhaps within 10 days of
initiation), be concluded in a short time (e.g. 30 days) and without appeal. Arbitration could be
conducted on the basis of a "check-list" of the basic elements required for the initiation of an
investigation and which fall within the scope of the arbitration.170 (TN/RL/W/67)
- consider the creation of a "standing advisory body" (this body could be modelled upon the
"Permanent Group of Experts" provided for in Article 24.3 of the SCM Agreement ) to give a non-
binding advisory opinion on the WTO legality of the initiation of a countervailing duty investigation,
this body would report to the WTO Committee on Subsidies and Countervailing Measures where
Members could express their views on the report.171 (TN/RL/W/67)
160. Technical Assistance / Capacity Building
- develop standardized training programs; organize meetings of administrators to learn and discuss
technical issues.172 (TN/RL/W/35)
161. Codification of Decisions
- consider whether some or all of the Dispute Settlement Body's interpretations of the SCM Agreement
should be incorporated into the Agreement.173 (TN/RL/W/47)
                                                     
169 See Section 70 supra  on the Anti-Dumping Agreement .
170 See Section 70 supra  on the Anti-Dumping Agreement .
171 See Section 70 supra  on the Anti-Dumping Agreement .
172 See Section 71 supra  on the Anti-Dumping Agreement .
173 See Section 76 supra  on the Anti-Dumping Agreement .TN/RL/W/143
Page 158
162. Perishable, Seasonal, Cyclical Products
- clarify and improve the rules pertaining to issues particular to countervailing duty investigations of
perishable, seasonal, and cyclical products (producers may be more vulnerable to dumped or
subsidized imports that enter the domestic market during the limited portions of the year when their
product is sold).174 (TN/RL/W/72)
163. Persistent Subsidization
- address the issue of persistent subsidization, i.e. persistent subsidization of the same product, by the
same producer/country, being exported to numerous countries around the world.175 (TN/RL/W/72)
164. Procedural Issues / Sampling
- clarify the precise manner by which a statistically valid sample can be developed (e.g. what are the
relevant characteristics of the underlying population, and what is the relationship between the
available sampling units and the parameter value to be estimated?).176  (TN/RL/W/78)
- develop a model questionnaire and verification outlines to be used in countervailing duty
investigations. (TN/RL/W/78)
165. Subsidized Domestic Like Product
- explore practical modalities to ensure that the countervail process takes account of the amount of
subsidization specifically benefiting the domestic like product. (TN/RL/W/112)
166. Consistent Use of Terminology
- review the use of terms within the Anti-Dumping  and Subsidies Agreements  as well as across the two
agreements (such a review would reveal the inconsistent use of certain terms, which may have
unintended consequences for the interpretation of the Agreements , for example, Article 6.7 of the
Anti-Dumping Agreement  provides for notifying "the representatives of the government of the
Member" with respect to an in-country verification, by contrast, in elaborating on the samerequirement, Annex I, paragraph 1 refers to notifying "the authorities of the exporting Member";
similarly, in what are otherwise equivalent provisions, Article 19.3 of the SCM Agreement  uses the
term "levied" where Article 9.2 of the Anti-Dumping Agreement  uses the term "collected").
177
(TN/RL/W/130)
                                                     
174 See Sections 4 and 11 supra  on the Anti-Dumping Agreement  and Section 136 supra on the  SCM
Agreement .
175 See Section 74 supra  on the Anti-Dumping Agreement .
176 See Section 48 supra  on the Anti-Dumping Agreement  and Section 158 supra  on the SCM
Agreement.
177 See Section 81 supra  on the Anti-Dumping Agreement and Section 157  supra on the  SCM
Agreement .TN/RL/W/143
Page 159
167. Preliminary Determination
- consider whether the Agreement could be improved by requiring that Members issue a preliminary
determination at a point in time prior to a final determination that would give parties sufficient time to
defend their interests.178 (TN/RL/W/130)
168. Standard of Review
- consider whether a provision similar to Article 17.6 of the Anti-Dumping Agreement  should be
included in the SCM Agreement.179 (TN/RL/W/130)
169. Nature and Composition of Investigating Authorities
- consider whether the SCM Agreement  should be clarified to expressly incorporate the concept that
individual members should continue to have the flexibility to organize their authorities as they deem
appropriate, particularly for Members that use auth orities with multiple decision makers; matters that
may be addressed in such a clarification could include, for example, a Member's ability: (a) to
determine what constitutes the determination of the appropriate authority; and (b) to permit separate
authorities to maintain distinct records.180 (TN/RL/W/130)
170. Small Economies: Regional Authority
- explore proposal for a regional trade authority (proposed in the context of the Work Programme on
Small Economies), which would conduct trade re medy cases on behalf of individual Members.181
(TN/RL/W/35)
- consider how a regional authority (designated by small economies that do not have the resources to
maintain a "competent authority") might function, and any changes in the SCM Agreement  which may
be necessary. 182 (TN/RL/W/72)
                                                     
178 See Section 82 supra  on the Anti-Dumping Agreement .
179 See Section 64 supra  on the Anti-Dumping Agreement .
180 See Section 83 supra  on the Anti-Dumping Agreement .
181 See Section 84 supra  on the Anti-Dumping Agreement .
182 See Section 84 supra  on the Anti-Dumping Agreement .TN/RL/W/143
Page 160
ANNEX I183
TN/RL/W/1 – Improved Disciplines Under the Agreement on Subsidies and Countervailing
Measures and the Anti-Dumping Agr eement.  Communication from Canada.
TN/RL/W/3 – The Doha Mandate to Address Fisheries Subsidies: Issues.  Submission from
Australia, Chile, Ecuador, Iceland, New Zealan d, Peru, Philippines and the United States.
TN/RL/W/4 – Proposals on Implementation Related Issues and Concerns – Agreement on
Subsidies and Countervailing Measures/ Anti-D umping Agreement.  Submission by India.
TN/RL/W/5 – Export Credits in the WTO.  Paper by Brazil.
TN/RL/W/6 – Anti-dumping: Illustrative Major Issues. Paper by Brazil; Chile; Colombia;
Costa Rica; Hong Kong, China; Israel; Japan; Korea; Mexico; Norway; Singapore; Switzerland;
Thailand and Turkey.
TN/RL/W/7 – Implementation-Related Issues. Paper by Brazil.
TN/RL/W/9 – Proposal from the People's Republic of China on Fisheries Subsidies.
Communication from China.
TN/RL/W/10 – Second Contribution to Discussion of the Negotiating Group on Rules on Anti-
dumping Measures. Paper by Brazil; Chile; Colombia; Costa Rica; Hong Kong, China; Israel; Japan;Korea; Norway; Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu; Singapore;
Switzerland and Thailand.
TN/RL/W/11 – Japan's Basic Position on the Fisheries Subsidies Issue.  Communication from
Japan.
TN/RL/W/12 – Fisheries Subsidies: Limitations of Existing Subsidy Disciplines.  Submission
from New Zealand.
TN/RL/W/13 – Submission from the European Communities Concerning the Agreement on
Implementation of Article VI of GATT 1994 (Ant i-dumping Agreement).  Communication from the
European Communities.
TN/RL/W/17 – Korea's Views on the Doha Development Agenda Discussions on Fisheries
Subsidies.
TN/RL/W/18 – Replies to the Questions/Comments from Australia on TN/RL/W/10.  Paper by
Brazil; Chile; Colombia; Costa Rica; Hong Kong, China; Israel; Japan; Korea; Norway; Separate
Customs Territory of Taiwan, Penghu, Kinmen a nd Matsu; Singapore; Switzerland; and Thailand.
TN/RL/W/19 – Countervailing Measures: Illustrative Major Issues.  Paper by Brazil.
                                                     
183 This Annex contains the list of documents relating to Anti-Dumping, Subsidies and Countervailing
Measures and Fisheries Subsidies circulated under document series TN/RL/W/ . Documents in this series which
relate to Regional Trade Agreements are included in this Annex.TN/RL/W/143
Page 161
TN/RL/W/20 – Questions from the European Communities on Documents TN/RL/W/6 and
TN/RL/W/10.  Communication from the European Communities.
TN/RL/W/21 – Adverse Trade and Conservation Effects of Fisheries Subsidies.
Communication from the United States.
TN/RL/W/22 – Comments on Document TN/RL/W/6 on Anti-Dumping Measures.  Paper from
Australia.
TN/RL/W/23 – Comments on Document TN/RL/W/10 on Anti-Dumping Measures.  Paper
from Australia.
TN/RL/W/24 – Submission by the United States .  Communication from the United States
TN/RL/W/25 – Questions from the United States on Papers Submitted to the Rules Negotiating
Group.  Communication from the United States.
TN/RL/W/26 – Second Submission of India (A nti-dumping Agreement).  Communication from
India.
TN/RL/W/27 – Basic Concepts and Principles of the Trade Remedy Rules.  Communication
from the United States.
TN/RL/W/28, TN/RL/W/28/Rev.1(adding Mexico) – General Contribution to the Discussion of
the Negotiating Group on Rules on Anti-Dumping Measures.  Paper from Brazil; Chile; Colombia;Costa Rica; Hong Kong, China; Israel; Japan; Kore a; Norway; Separate Customs Territory of Taiwan,
Penghu, Kinmen and Matsu; Singapore; Switzerland; Thailand; and Turkey.
TN/RL/W/29 – Third Contribution to Discussion of the Negotiating Group on Rules on Anti-
dumping Measures. Paper by Brazil; Chile; Colombia; Costa Rica; Hong Kong, China; Japan; Korea;
Norway; Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu; Singapore; Switzerland;Thailand and Turkey.
TN/RL/W/30 –  WTO Negotiations Concerning the WTO Agreement on Subsidies and
Countervailing Measures.  Proposal by the European Communities.
TN/RL/W/31 – Replies to Additional Questions to Our Second Contribution (TN/RL/W/10).
Paper by Brazil; Chile; Colombia; Costa Rica; Hong Kong, China; Israel; Japan; Korea; Norway;Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu; Singapore; Switzerland; and
Thailand.
TN/RL/W/33 – Special and Differential Treatment and the Subsidies Agreement.
Communication from the United States.
TN/RL/W/34 – Second Set of Questions from the United States on Papers Submitted to the
Rules Negotiating Group.  Communication from the United States.
TN/RL/W/35 – Investigatory Procedures under the Anti-Dumping and Subsidies Agreements.
Submission by the United States.
TN/RL/W/36 – Morocco's Views on the Negotiations on the Rules and Disciplines of the
Agreement on Implementation of Article VI of the GATT 1994 and the Agreements on Subsidies and
Countervailing Measures.  Communication from Morocco.TN/RL/W/143
Page 162
TN/RL/W/37 – Comments from Australia on Brazil's Paper on Countervailing Measures:
Illustrative Major Issues (Document TN/RL/W/19).  Submission by Australia.
TN/RL/W/38 – Comments from Australia on the United States' Paper on Basic Concepts and
Principles of the Trade Remedy Rules (Docum ent TN/RL/W/27).  Submission by Australia.
TN/RL/W/39 – Comments from Australia on the European Communities' Subsidies Paper
(TN/RL/W/30).  Submission by Australia.
TN/RL/W/40 – Intervention by India on the Proposal by the EC Captioned WTO Negotiations
Concerning the WTO Agreement on Subsidies and Countervailing Measures (TN/RL/W/30).
Communication from India.
TN/RL/W/41 – Improved Rules Under the Agreement on Subsidies and Countervailing
Measures  - Non-Actionable Subsidies.  Proposal by Venezuela and Cuba.
TN/RL/W/42 – Questions to the United States on TN/RL/W/24.   Communication from India.TN/RL/W/43 – Comments from Australia on the United States' Paper on Investigatory
Procedures Under the Anti-Dumping And Subsid ies Agreements (TN/RL/W/35).  Submission by
Australia.
TN/RL/W/44 – Treatment of Confidential and N on-Confidential Information Under Article 6.5
of the WTO Anti-Dumping Agreement.  Submission by Australia.
TN/RL/W/45 – Replies to Questions to our First Contribution (TN/RL/W/6).  Paper from
Brazil; Chile; Colombia; Costa Rica; Hong Kong, China; Israel; Japan; Korea; Norway; Singapore;
Switzerland and Thailand.
TN/RL/W/46 – Fourth Contribution to the Discussion of the Negotiating Group on Rules on
Anti-Dumping Measures.  Paper by Brazil; Chile; Colombia; Costa Rica; Hong Kong, China; Israel;Korea; Japan; Mexico; Norway; Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu;
Singapore; Switzerland; Thailand and Turkey.
TN/RL/W/47 – Submission from Canada Respecting the Agreement on Implementation of
Article VI of the GATT 1994 (the Anti-Dumping  Agreement).  Communication from Canada.
TN/RL/W/48 – Anti-Dumping Actions in the Area of Textiles and Clothing: Developing
Members' Experience and Concerns.  Communication from Bangladesh, People's Republic of China;
Colombia; Costa Rica; Egypt; Guatemala; Hong Kong, China; India; Indonesia; Korea; Macao,
China; Maldives; Pakistan; Paraguay; Peru; Thailand and Vietnam.
TN/RL/W/49 – Communication From the United States Attaching a Communiqué from the
Organization for Economic Cooperation and Devel opment (OECD).  Communication from the United
States.
TN/RL/W/50 – Circumvention.  Communication from the United States.TN/RL/W/51 – Questions Pertaining to the United States' Paper on Basic Concepts and
Principles of the Trade Remedy Rules.  Communication from Japan.
TN/RL/W/52 – Japan's Contribution to Discussion on Fisheries Subsidies Issue.
Communication from Japan.TN/RL/W/143
Page 163
TN/RL/W/53 – Replies to Questions Presented to the United States on Submission
TN/RL/W/27.  Communication from the United States.
TN/RL/W/54 – Third Set of Questions from the United States on Papers Submitted to the Rules
Negotiating Group.  Communication from the United States.
TN/RL/W/55 – Position Paper to be Presented by the Arab Republic of Egypt on the Doha
Declaration Concerning the Negotiations of the Anti-Dumping Agreement.  Communication from
Egypt.
TN/RL/W/56 – Egyptian Paper Containing Commen ts on the Contributions Submitted in the
Framework of the Doha Negotiations on the Anti -Dumping Agreement.  Communication from Egypt.
TN/RL/W/57 – Egyptian Paper Containing Questions and Comments on the Contributions
Submitted in the Framework of the Doha Negotiations on the Subsidies and Countervailing Measures
Agreement.  Communication from Egypt.
TN/RL/W/58 – Subsidies in the Fisheries Sector: Possible Categorizations.  Submission from
Argentina, Chile, Iceland, New Zealand, Norway, and Peru.
TN/RL/W/59 – Comments from Australia on the Third Contribution from a Number of
Countries (Document TN/RL/W/29).  Communication from Australia.
TN/RL/W/60 – Comments from Australia on Morocco's Paper on Anti-Dumping and Subsidies
and Countervailing Measures Agreements (TN/RL/W/36).  Communication from Australia.
TN/RL/W/61 – Comments from Australia on Venezuela's Submission on Non-Actionable
Subsidies Under the Agreement on Subsidies and Countervailing Measures (Document
TN/RL/W/41).  Communication from Australia.
TN/RL/W/62 – Comments from Australia on Canada's Submission on the Anti-Dumping
Agreement  (Document TN/RL/W/47).  Communication from Australia.
TN/RL/W/63 – Senior Officials' Statement on Anti-Dumping Negotiations.  Communication
from Brazil; Chile; Colombia; Costa Rica; Hong Kong, China; Israel; Japan; Korea; Mexico; Norway;
Singapore; Switzerland; the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu;
Thailand and Turkey.
TN/RL/W/64 – Replies to the Questions Made by the Australian Delegation in Document
TN/RL/W/37.  Submission by Brazil.
TN/RL/W/65 – Korea's Comments on Canada's Submission on the Anti-Dumping Agreement
(TN/RL/W/47).  Communication from Korea.
TN/RL/W/66 – Proposal of the People's Republic of China on the Negotiation on Anti-
Dumping.  Communication from China.
TN/RL/W/67 – Negotiations on Anti-Dumping and Subsidies – Reflection Paper of the
European Communities on a Swift Control Mechanism for Initiations.  Communication from the
European Communities.
TN/RL/W/68 – Intervention by India on the Submission by the United States on Special and
Differential Treatment and the Subsidies Agreement.  Communication by India.TN/RL/W/143
Page 164
TN/RL/W/69 – Korea's Views on the Suggested Categorization of Fishery Subsidies.
Communication from Korea.
TN/RL/W/70 – Preliminary Replies to the Questions by Australia Contained in Document
TN/RL/W/61.  Document Submitted by Venezuela and Cuba.
TN/RL/W/71 – Responses by the United States to Questions from Australia on Investigatory
Procedures Under the Anti-Dumping and Subsidies Agreements.  Submission by the United States.
TN/RL/W/72 – Identification of Certain Major Issues Under the Anti-Dumping and Subsidies
Agreements.  Submission by the United States.
TN/RL/W/73 – Comments from Australia on the Arab Republic of Egypt's Position Paper
Concerning the Negotiations on the Anti-Dumping Agreement  (TN/RL/W/55).  Submission from
Australia.
TN/RL/W/74 – Comments from Australia on the People's Republic of China's Paper on Anti-
Dumping (Document TN/RL/W/66).  Submission from Australia.
TN/RL/W/75 – Comments from Australia on the European Communities' Paper: Reflection
Paper on a Swift Control Mechanism for Initiati ons (Document TN/RL/W/67).  Submission from
Australia.
TN/RL/W/76 – Proposal on Sunset.  Paper from Brazil; Chile; Colombia; Costa Rica; Hong
Kong, China; Israel; Japan; Korea; Norway; the Separate Customs Territory of Taiwan, Penghu,
Kinmen and Matsu; Switzerland; Thailand and Turkey.
TN/RL/W/77 – Possible Approaches to Impr oved Disciplines on Fisheries Subsidies.
Communication from the United States.
TN/RL/W/78 – Subsidies Disciplines Requiring Clarification and Improvement.
Communication from the United States.
TN/RL/W/79 and TN/RL/W/79/Corr.1  – Preliminary Comments and Questions by the Arab
Republic of Egypt on the Contributions Submitted in the Framework of the Doha Negotiations on the
Anti-Dumping Agreement  and on the Agreement on Subsidies and Countervailing Measures.
Submission from Egypt.
TN/RL/W/80 – Clarifications Sought by Indi a on the Submissions by the United States
(TN/RL/W/35) and Canada (TN/RL/W/47).  Communication from India.
TN/RL/W/81 – Communication from Argentina.
TN/RL/W/82 – Submission of the European Communities to the Negotiating Group on Rules –
Fisheries Subsidies.
TN/RL/W/83 – Proposal on Reviews.  Paper from Brazil; Chile; Colombia; Costa Rica; Hong
Kong, China; Israel; Japan; Korea; Norway; Singapore; Switzerland; the Separate Customs Territoryof Taiwan, Penghu, Kinmen and Matsu; and Thailand.
TN/RL/W/84 – Questions from Japan Concerning Papers on the Fisheries Subsidies Issue.TN/RL/W/143
Page 165
TN/RL/W/85 – General Contribution to the Discussion of the Negotiating Group on Rules on
the Agreement on Subsidies and Countervailing Duty Measures.  Submission from Australia.
TN/RL/W/86 -  General Contribution to the Discussion of the Negotiating Group on Rules on
the Anti-Dumping Agreement.  Submission from Australia.
TN/RL/W/87 – Replies to the Questions Posed by Australia Concerning the Document
Submitted by Morocco.  Communication from Morocco.
TN/RL/W/88 – Comments from the People's Republic  of China on the United States Proposal
on Fisheries Subsidies (TN/RL/W/77).  Communication from China.
TN/RL/W/89 – Comments by Australia on the United States' Paper on Subsidies Disciplines
Requiring Clarification and Improvement (Docum ent TN/RL/W/78).  Communication from Australia.
TN/RL/W/90 – Article 9.4 of the WTO Anti-Dumping Agreement: Dumping Margins for Each
Sampled Exporter Based on Facts Available.  Submission by Australia.
TN/RL/W/91 – "Like Product" Within the M eaning of the WTO Anti-Dumping Agreement.
Submission by Australia.
TN/RL/W/92 – Responses from Canada to Certain Questions Posed by Korea in TN/RL/W/65,
Australia in TN/RL/W/62, Egypt in TN/RL/W/79 and India in TN/RL/W/80.  Communication from
Canada.
TN/RL/W/93 – Proposal on Facts Available.  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.
TN/RL/W/94 – Replies to the Questions and Comments of WTO Members Concerning the
Proposal of China (TN/RL/W/66).  Submissi on from the People's Republic of China.
TN/RL/W/95 – Elements of a Steel Subsidies Agreement.  Comments from the United States.
TN/RL/W/96 – Questions from Korea on the United States' Paper on Subsidies Disciplines.
Submission from Korea.
TN/RL/W/97 – Korea's Comments on the Submission from the United States (TN/RL/W/77).
Submission from Korea.
TN/RL/W/98 – Identification of Additional Issues Under the Anti-Dumping and Subsidies
Agreements.  Paper Submitted by the United States.
TN/RL/W/99 – India's Replies to Questions From the United States on Its Submissions
(TN/RL/W/4 and TN/RL/W/26).  Communication from India.
TN/RL/W/100 – Egypt's Preliminary Comments  on the Contributions Submitted in the
Framework of the Doha Negotiations on the Agreements on Anti-Dumping and Subsidies and
Countervailing Measures (TN/RL/W/72).  Communication from Egypt.
TN/RL/W/101 – Egyptian Paper Containing Replies to Questions Posed by Australia in
Document Number TN/RL/W/73.  Communication from Egypt.TN/RL/W/143
Page 166
TN/RL/W/102 and TN/RL/W/102/Corr.1 – E gypt's Preliminary Comments on the
Contributions Submitted in the Framework of the Doha Negotiations on the Agreements on Anti-
Dumping and Subsidies and Countervailing Meas ures (TN/RL/W/78).  Communication from Egypt.
TN/RL/W/103 – Fourth Set of Questions From the United States on Papers Submitted to the
Rules Negotiating Group.  Communication from the United States.
TN/RL/W/104 – Agreements on Anti-Dumping Practices and Subsidies and Countervailing
Measures Illustrative Common Issues.  Paper by Brazil; Chile; Costa Rica; Hong Kong, China; Japan;
Korea; Norway; Switzerland; Thailand and Turkey.
TN/RL/W/105 – Submission of the Arab Republic  of Egypt on the Clarification of Certain
Provisions of the Anti-Dumping Agreement.  Communication from Egypt.
TN/RL/W/106 – Questions From India on Australia's Paper on 'General Contribution to the
Discussion of the Negotiating Group on Rules on  the Anti-Dumping Agreement'.  Communication
from India.
TN/RL/W/107 – Observations and Comments by Venezuela on Document TN/RL/W/78
Submitted by the United States Concerning Prohibited Subsidies and Other Subjects Under the WTO
Agreement on Subsidies and Countervailing Measures.  Communication from Venezuela.
TN/RL/W/108 – Preliminary Answers of Cuba a nd Venezuela to the Questions Provided by
Egypt Regarding Document TN/RL/W/41.  Communication from Cuba and Venezuela.
TN/RL/W/109 – Questions from Hong Kong, China on Papers Submitted to the Negotiating
Group on Rules.  Communication from Hong Kong, China.
TN/RL/W/110 and TN/RL/W/110/Corr.1 – Identifi cation of Issues Under the Anti-Dumping
Agreement that Need to Be Improved and Clarified Within the Current Negotiations on WTO Rules.Second Submission of the Arab Republic of Egypt.
TN/RL/W/111 – Korea's View on the Improvement of  the Sunset System.  Submission of the
Republic of Korea.
TN/RL/W/112 – Improved Disciplines Under the Agreement on Subsidies and Countervailing
Measures.  Communication from Canada.
TN/RL/W/113 – Proposal on Prohibition of Zeroing.  Paper from Brazil; Chile; Colombia;
Costa Rica; Hong Kong, China; Israel; Japan; Korea; Mexico; Norway; the Separate Customs
Territory of Taiwan, Penghu, Kinmen and Ma tsu; Singapore; Switzerland and Thailand.
TN/RL/W/115 – Possible Approaches to Improved Disciplines on Fisheries Subsidies.
Communication from Chile.
TN/RL/W/118 – Proposal on Price Undertakings.  Paper from Brazil; Chile; Colombia; Costa
Rica; Hong Kong, China; Japan; Korea; Norway; the Separate Customs Territory of Taiwan, Penghu,Kinmen and Matsu; Switzerland and Thailand.
TN/RL/W/119 – Proposal on Lesser Duty.  Paper from Brazil; Chile; Colombia; Costa Rica;
Hong Kong, China; Israel; Japan; Korea; Mexico ; Norway; Singapore; Switzerland; the Separate
Customs Territory of Taiwan, Penghu, Kinmen and Matsu; Thailand and Turkey.TN/RL/W/143
Page 167
TN/RL/W/120 – Third Submission by India to the Negotiating Group on Rules (Agreement on
Subsidies and Countervailing Measures).  Communication from India.
TN/RL/W/121 – Replies to Questions from India (TN/RL/W/106) and Hong Kong, China
(TN/RL/W/109) on Australia's General Contribution on Anti-Dumping (TN/RL/W/86) and "Like
Product" (TN/RL/W/91).  Co mmunication from Australia.
TN/RL/W/122 – Comments by Australia on the Proposal by Various Members on Reviews
(Document TN/RL/W/83).  Communication from Australia.
TN/RL/W/123 – Comments by Australia on the Proposal by Various Members on Sunset
Reviews (Document TN/RL/W/76).  Communication from Australia.
TN/RL/W/124 – Comments by Australia on the Proposal by Various Members on Facts
Available (Document TN/RL/W/93).  Communication from Australia.
TN/RL/W/125 – Comments by Australia on the United States' Paper on Certain Major Issues
Under the Anti-Dumping and Subsidies Agreements (Document TN/RL/W/72).  Communication
from Australia.
TN/RL/W/126 – Egypt's Paper Containing Commen ts on the Contributions Submitted in the
Framework of the Doha Negotiations on the Anti-Dumping Agreement and on the Subsidies and
Countervailing Measures Agreement.  Communication from Egypt.
TN/RL/W/127 – Reply to the Questions of the United States Concerning the Proposal of China
(TN/RL/W/66).  Communication from China.
TN/RL/W/128 – Egypt's Paper Replying to the Question Posed by the United States in
Document Number TN/RL/W/103.  Communication from Egypt.
TN/RL/W/129 – Concept Paper on Trade Remedy Rules: Evidence of Trade Distorting
Practices.  Communication from Hong Kong, China.
TN/RL/W/130 – Further Issues Identified Under the Anti-Dumping and Subsidies Agreements
for Discussion by the Negotiating Group on Rules.  Communication from the United States.
TN/RL/W/131 – Second Contribution by Cuba and Venezuela to the Negotiating Group on
Rules following their Proposal on Non-Actiona ble Subsidies. Communication from Cuba and
Venezuela.
TN/RL/W/132 – Contribution by Venezuela Regarding Various Aspects of the Agreement on
Anti-dumping and Agreement on Subsidies and Countervailing Measures that Require Clarification
and Improvement. Communication from Venezuela.
TN/RL/W/133 – Comments by Venezuela in Relation to the Korean Contribution Regarding its
Views on Improvement of Sunset Reviews. Communication from Venezuela.
TN/RL/W/134 – Reply from Canada to Questions Posed by the United States in TN/RL/W/103.
Communication from Canada.
TN/RL/W/135 – Comments and Views from Australia on Canada's Submission on Improved
Disciplines under the Agreement on Subsidies and Countervailing Measures (Document
TN/RL/W/112). Communication from Australia.TN/RL/W/143
Page 168
TN/RL/W/136 – Fisheries Subsidies. Communication from Antigua and Barbuda, Belize, Fiji
Islands, Guyana, the Maldives, Papua New Guinea, Solomon Islands, St Kitts and Nevis.
TN/RL/W/137 – The Role of Transparency in the Anti-Dumping Agreement. Communication
from New Zealand.
TN/RL/W/138 – Proposals on Cost Savings in Anti-Dumping Proceedings. Submission from
the European Communities and Japan.
TN/RL/W/139 – Further Contribution to the Discussion on the Negotiating Group on Rules on
the Agreement on Subsidies and Countervailing Measures. Submission from Australia.
TN/RL/W/140 – Egyptian Paper Containing Replies to Questions Orally Posed by Canada
during the Ninth Meeting of the Negotiating Group on Rules on 18-19 June 2003. Communication
from Egypt.
TN/RL/W/141 – Comments of the Arab Republic of Egypt on Further Contributions Submitted
in the Framework of the Doha Round Negotiations on the Agreements on Anti-Dumping and
Subsidies and Countervailing Measures. Communication from Egypt.TN/RL/W/143
Page 169
ALPHABETICAL INDEX
PART I......................................................................................................................... ...........................1
ANTI-DUM PING ................................................................................................................... .................1
"All-Others" Rate.............................................................................................................. ........54
Accrual of Interest ............................................................................................................ ........53
Availability of Relevant Informa tion from National Authorities ..............................................33
Back to Back Anti-Dumping Investigations ..............................................................................26
Calculation of Injury Margins .................................................................................................. 16
Causation...................................................................................................................... ............18
Circumvention.................................................................................................................. .........73
Codification of Recommendations and Decisions ....................................................................77Concurrent Application of Anti-Dumping and Safeguard Measures........................................76
Condition of the Domestic Industry in any Threat of Material Injury Analysis .......................20
Conduct of Veri fications ....................................................................................................... ....37
Consistent Use of  Terminology.................................................................................................7 8
Constructed Export Price ....................................................................................................... ....7
Constructed Value.............................................................................................................. .........6
Consultation Prior to Init iation ............................................................................................... .77
Cost Allocation ................................................................................................................ ...........5
Critical Circumstances ......................................................................................................... ....62
Cumulative Assessment of Injury / Cu mulation ........................................................................15
Currency Conversion............................................................................................................ ......9
Cyclical Markets / Perishable, Seasonal, Cyclical Products......................................................8
Definition of "Dumped Imports"...............................................................................................13
Definition of "Sufficient Quantity of Sales of the Like Product in the Domestic Market
for the Determination of Normal Value" ....................................................................................1
Definition of Dome stic Industry................................................................................................ 22
Definition of Product U nder Investig ation ...............................................................................11
Detailed National Legi slation/Regulation ................................................................................72
Determination of Normal Valu e / Affiliated Parties ...................................................................2
Disclosure / Evid ence .......................................................................................................... .....41
Domestic Industry Consisting of Small-Scale or “Unorganised” Sector Producers ...............27
Duty Absorption................................................................................................................ ........77
Duty Refund .................................................................................................................... ..........73TN/RL/W/143
Page 170
Establishment of Overall Weight ed-Average Dumping Margins..............................................10
Ex Officio Initia tion .......................................................................................................... ........29
Examination of Impact.......................................................................................................... ....17
Exclusion of Companies......................................................................................................... ...51
Facts Available ............................................................................................................... .........40
Favoured Exporter Treatment ..................................................................................................43
Harmonization of the Anti-Dumping Ag reement and the SCM Agreement ..............................73
Hearing and Meetings ........................................................................................................... ...32
Hierarchy of Options in Cons tructed Value Ca lculation............................................................6
High Inflati on Economies ....................................................................................................... ..78
Imposition and Collection of Duties .........................................................................................53
Initiation and Publicization of the Application.........................................................................28
Initiation Standards ........................................................................................................... .......25
Injury Dete rmination ........................................................................................................... .....16
Interested Parties............................................................................................................. .........44
Judicial Review................................................................................................................ .........67
Lesser duty .................................................................................................................... ............49
Like Product................................................................................................................... ...........11
Maintenance of a Public Record...............................................................................................33
Market Segm entation ............................................................................................................ ....14
Material Re tardation ........................................................................................................... .....13
Nature and Composition of In vestigating Au thorities ..............................................................78
"Non Market Economy" Clause................................................................................................12
Particular Mar ket Situation.................................................................................................... ....1
Periods of Data Collection for Anti-Dumping Investigations ..................................................77
Persistent Dumping............................................................................................................. ......76
Preliminary De termina tion...................................................................................................... .78
Price Undertakings ............................................................................................................. ......46
Procedural Issu es / Sampling ................................................................................................... 43
Prohibition of Zeroing ......................................................................................................... .....10
Provisional Measures ........................................................................................................... ....45
Public In terest................................................................................................................ ...........76
Public Notice and Explanation of Determinations / Transparency..........................................65
Reasonability Test............................................................................................................. ..........6
Reducing the Cost of Investigations..........................................................................................73
Refund or Reimbursement of the Duty Paid in Excess..............................................................53TN/RL/W/143
Page 171
Repeated Dumping............................................................................................................... .....77
Retroact ivity.................................................................................................................. ............62
Reviews… …………................................................................................................................... .58
Sales in the Ordinary Course of  Trade / Profitability Test.........................................................3
Shorter Periods for Investiga tions............................................................................................3 1
Single Margin of Dumping for the Entir e Period of Investigation or Review ..........................10
Small Economies: Re gional Authority......................................................................................79
Special and Differential Treatment for Developing Country Members....................................68
"Special Care" Requirement in Respect of Dete rmination of Threat of Material Injury..........21
Standard of Review ............................................................................................................. ......70
Standing Rules ................................................................................................................. .........26
Swift Control Mechanis m for Initiations...................................................................................74
Technical Assistance / Capacity Building.................................................................................76
Threat of Mate rial Injury...................................................................................................... ....19
Thresholds..................................................................................................................... ............30
Treatment in Case of a Large Number of Exporters, Producers, Importers or Types of
Products....................................................................................................................... .............43
Treatment of Confidential and No n-Confidential Information .................................................34
Use of Cost Data............................................................................................................... ..........5
PART II ........................................................................................................................ ........................80
I.  SUBSIDIES DI SCIPLINES .....................................................................................................80
Accelerated Timeframes ......................................................................................................... ..90
Codification of Analytical and Quantification Methodologies ...............................................109
Definition of  Subsidy.......................................................................................................... .......81
Export Credits (Items (j ) and (k) of Annex I)............................................................................86
"Local Content" Subsidies ...................................................................................................... ..85
Natural Resources and Energy Pricing ..................................................................................109
Non-Actionabl e Subsid ies ....................................................................................................... 100
Notificat ions.................................................................................................................. ..........102
Permanent Group of Experts ....................................................................................................9 0
Privatization.................................................................................................................. ..........110
Prohibited Subsidies ........................................................................................................... ......84
Provision of Equity Capital .................................................................................................... 109
Remedies for Prohibited Sub sidies / Enforcement....................................................................89
Remedies ....................................................................................................................... ............95TN/RL/W/143
Page 172
Serious Prejudice Remedy / Actionable S ubsidies....................................................................94
Special and Differential Treatment for Developing Country Members..................................106
Specificity.................................................................................................................... ..............83
Subsidies and the Environment...............................................................................................109
Taxation ....................................................................................................................... ...........109
Trade- and Market-Disto rting Practices ................................................................................110
Traffic Light Framework ........................................................................................................ 109
II.  FISHERIE S SUBSIDIES....................................................................................................... .111
Categorization of Fi sheries Subs idies ....................................................................................111
Expanded Category of Prohibited ("Red Light") Fisheries Subsidies / Prohibition of
Capacity Enhancing Subsidies................................................................................................112
Framework for Addressing the I ssue of Fisheries Subsidies ..................................................111
Improved Notification of  Subsidies Programmes / Transparency .........................................114
Need for Improved WTO Disciplines......................................................................................111
Non-Actionable Fish eries Subsid ies .......................................................................................111
Revision of Fisher ies Subsidies...............................................................................................1 13
Scope of Fisheries Subsidies................................................................................................... 111
Serious Prejudice and a Presumptively Harmful ("Dark Amber") Category.........................113
Special and Differential Treatment for Developing Country Members..................................114
Utilisation of Expertise of  International Bodies .....................................................................113
III. COUNTERVAIL ING MEAS URES.......................................................................................116
"All-Others" Rate.............................................................................................................. ......139
Accrual of Interest ............................................................................................................ ......139
Additional Guidelines  to Article 14 ........................................................................................127
Availability of Relevant Informa tion from National Authorities ............................................120
Calculation of the Amount of a Subsidy in Terms of the Benefit to the Recipient ..................126
Capital Goods and Consumables to  be Included in the Definition of Inputs Consumed........154
Causation...................................................................................................................... ..........131
Circumvention.................................................................................................................. .......155
Codification of  Decisions...................................................................................................... ..157
Condition of the Domestic Industry in any Threat of Material Injury Analysis .....................132
Conduct of Veri fications ....................................................................................................... ..122
Consistent Use of  Terminology...............................................................................................158
Critical Circumstances ......................................................................................................... ..145
Cumulative Assessment of Injury / Cu mulation ......................................................................129
De minimis Rule in Article 11.9 an d Its Relation With  Article 19 ..........................................139TN/RL/W/143
Page 173
Definition of Dome stic Industry..............................................................................................13 4
Definition of Product U nder Investig ation .............................................................................118
Detailed National Legislation/Regulation ..............................................................................150
Disclosure / Evid ence .......................................................................................................... ...124
Duty Refund .................................................................................................................... ........155
Examination of Impact.......................................................................................................... ..130
Exclusion of Companies......................................................................................................... .139
Facts Available ................................................................................................................ .......123
Favoured Exporter Treatment ................................................................................................140
Harmonization of the Anti-Dumping Ag reement and the SCM Agreement ...........................155
Initiation and Publicization of the Application.......................................................................119
Initiation Standards ........................................................................................................... .....118
Interested Parties............................................................................................................. .......125
Judicial Review................................................................................................................ .......149
Lesser Duty .................................................................................................................... .........139
Like Product................................................................................................................... .........128
Maintenance of a Public Record.............................................................................................120
Market Segm entation ............................................................................................................ ..128
Nature and Composition of In vestigating Au thorities ............................................................159
No Obligation for the Exporter Con cerned to Import  the Inputs ...........................................154
Perishable, Seasonal, Cyclical Products ................................................................................158
Persistent Subs idization....................................................................................................... ...158
Preliminary Dete rminatio n.....................................................................................................1 59
Price Undertakings ............................................................................................................. ....137
Procedural Issues  / Sampling .................................................................................................15 8
Protection and Disclosure of Confidential In formation .........................................................121
Provisional Measures ........................................................................................................... ..135
Public Notice and Explanation of Determinations / Transparency........................................148
Reducing the Cost of Investigations........................................................................................155
Refund or Reimbursement of th e Duty Paid in Excess............................................................139
Retroact ivity.................................................................................................................. ..........145
Reviews ....................................................................................................................... ...........143
Small Economies: Re gional Authority....................................................................................159
Standard of Review ............................................................................................................. ....159
Standing Rules ................................................................................................................. .......118
Subsidized Domestic Like Product..........................................................................................158TN/RL/W/143
Page 174
Swift Control Mechanis m for Initiations.................................................................................156
Technical Assistance / Capacity Building...............................................................................157
Verification System for Drawback and Substitution Drawback Schemes...............................153
__________