./.WORLD TRADE
ORGANIZATIONTN/RL/W/75
19 March 2003
(03-1601)
Negotiating Group on Rules Original:  English
COMMENTS FROM AUSTRALIA ON THE EUROPEAN COMMUNITIES’ PAPER:
REFLECTION PAPER ON A SWIFT CONTROL MECHANISM
FOR INITIATIONS (DOCUMENT TN/RL/W/67)
Submission from Australia
Australia thanks the European Communities for its most interesting elaboration of its
proposals for a swift control mechanism for initiations in anti-dumping and countervailing duty
investigations.  The following poses questions and provides Australia’s preliminary views which are
without prejudice to any final position that Australia may subsequently take in the later negotiationsphase.
Australia agrees that current anti-dumping initiations are not measures which can be subject
to dispute settlement procedures under ADA Arti cle 17.4.  Australia also agrees that a flawed
initiation cannot subsequently be cured notwithstanding that in a dispute settlement proceedingrelating to provisional or definitive anti-dumping or countervailing duty measures, the initiation of an
investigation could also be examined.
Australia considers that this issue raises the importance of initiation standards both from an
evidentiary viewpoint and definitional grounds (like product, product under investigation, domestic
industry, standing).
Australia is mindful of the commercial effect (‘trade-chilling’ effect) that the very initiation of
an anti-dumping investigation can have on exporters/producers.  However, Australia would be
interested in views on whether the ‘clock’ could be stopped where matters are referred to fast tract
initiation panels in order to ensure that this is balanced with procedural fairness.
Having an open, transparent system of consultations sometimes remedies perceptions that
initiation of an investigation is groundless.  Therefore, Australia considers that any swift control
mechanism should not undermine open consultations.  Otherwise, such a mechanism may encourage
immediate recourse to dispute settlement proceedings which may ultimately be without foundation.
Given there is not a corresponding provision as ADA Article 17.4 reflected in the SCM, does
the absence of the inclusion of initiation of anti-dumping investigations in ADA Article 17.4 represent
lacuna in the ADA?  Australia notes in this context the Ministerial Declaration on Dispute Settlement
Pursuant to the Agreement on Implementation on Ar ticle VI of the GATT 1994 or Part V of the
Agreement on Subsidies and Countervailing Measures, namely “the need for the consistent resolution
of disputes arising from anti-dumping and countervailing duty measures”.  Does the EC consider there
to be imbalance between the ADA and the SCM in relation to dispute settlement actions?
Fast track initiation panels
The European Communities correctly identifies the grounds or elements on which initiations
could be challenged.  The European Communities also suggests that there be an obligation on a panelTN/RL/W/75
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to issue suggestions on how to implement recommendations.  If there is no prima facie evidence or
one of the elements to initiate are absent, then the only recommendation could be for the investigation
to be terminated.  What does implementation and “reasonable period of time” mean in the context
where, for example, one of the elements has not been established by the investigating authorities?
Surely in such cases, the investigation should be terminated without recourse to dispute settlementproceedings.  Further, in a situation where a fast track panel has determined that one element or the
grounds for initiation are deficient, and the recommendation is to terminate, could the domestic
industry simply submit a new application?
What are the implications of footnote 7 (relating to the suspensive effect)?  How would this
relate to, for example, ‘stopping the clock’?
Arbitration
The timeframes outlined under this scenario may be less disruptive to the investigation
timeline overall.  However, as Australia commented above, ‘stopping the clock’ while a matter is
subject to the fast track panel could prevent any disa dvantage to either the affected domestic industry
or the exporters/producers subject to investigation.
Would an arbitration clause based on Article 25 of the DSU result in an expedited outcome?
Article 25 of the DSU is based on the "mutual agreement" of the parties.  While it is not subject to the
prescriptive time frames of other dispute settlement provisions, it does not provide any certaintyshould the parties fail to reach an agreement.
The European Communities notes that the arbitration could be conducted on the basis of a
“checklist” of basic elements required for the initiation of an investigation.  Does the European
Communities consider that this would be sufficient, particularly as initiation raises issues ofqualitative evidence notwithstanding that it is prima facie evidence?  For example, in a countervailing
duty investigation, would a website address for a government programme be sufficient prima facie
evidence for initiation of an investigation?
Standing advisory body
The merits of having a non-binding advisory opini on under this option are not clear.  It is also
not clear how this would improve predictability in proceedings.  While such an opinion could give a
‘warning’ to the investigating authority that the initiation was deficient, the consistency of the
initiation would still be subject to the binding findings of a dispute settlement panel if it were
subsequently challenged.  How would this option provide legal certainty?
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