./.WORLD TRADE
ORGANIZATIONTN/RL/W/124
16 June 2003
(03-3184)
Negotiating Group on Rules Original:  English
COMMENTS BY AUSTRALIA ON THE PROPOSAL BY VARIOUS MEMBERS
ON FACTS AVAILABLE (DOCUMENT TN/RL/W/93)
The following communication, dated 13 June 2003, has been received from the Permanent
Mission of Australia.
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Australia thanks the proponents for the proposal suggesting solutions to problems identified
in relation to recourse to facts available.  Australia has indicated in its general concepts paper
(TN/RL/W/86) that it considers that the issue of facts available is an area which requires greater
clarity and predictability and agrees that there are currently a number of ambiguities in the application
of facts available.  The proposal contains a number of aspects on which Australia has some
preliminary comments and questions.
Australia agrees on the importance of advising respondents of any recourse to facts available
by the investigating authorities at any point durin g the investigation process and a clear explanation
on the basis for such recourse.
Australia also agrees that it may be useful to examine the concept of “significant
impediment”, as proposed under Element one of the paper, and how Members have applied this.
Australia also considers that it is important to note the interrelationship between the
provisions in the WTO Anti-Dumping Agreement relating to facts available and other provisions such
as the timeframe for an exporter to respond to questionnaires and any follow-up information sought
from the investigating authorities.  Clearly, investigating authorities will always be mindful of thebalance which is required in relation to timeframes:  that there is a fair and due process assured to
exporters, as well as the need to take timely remedial action in response to injurious dumping.
Investigating authorities must be able to make a determination or calculation of the dumping margin
within the overall investigation timeframes.
Australia noted in an earlier comments paper (TN/RL/W/22) the helpful guidance provided
by WTO jurisprudence in the US – Hot-Rolled Steel  case 
1 in regard to whether information had been
submitted “within a reasonable time”.  The Appellate Body suggested that investigating authorities
should consider the following factors:
(i) the nature and quality of the information submitted
(ii) the difficulties encountered by an inve stigating exporter obtaining the information
(iii) the verifiability of the information and ease with which it can be used
(iv) whether other interested parties would be prejudiced if the information is used
                                                     
1 United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products , Appellate Body
Report (WT/DS184/AB/R), 24 July 2001 (hereafter US –Hot-Rolled Steel ).TN/RL/W/124
Page 2
(v) whether the acceptance of the information would compromise the ability of the
investigating authorities to conduct the investigation expeditiously and
(vi) the number of days by which the investigated exporter missed the applicable time
limit.
As a general observation based on Australian exporters’ experiences, complications appear to
arise in circumstances where additional information is sought following the on-the-spot investigation.
Australia notes that paragraph 7 of Annex I provides that “it should be standard practice prior to the
visit to advise the firms concerned of the general nature of the information to be verified and of any
further information which needs to be provided, though this should not preclude requests to be made
on the spot for further details to be provided in the light of information obtained”.
We would agree that where a firm refuses verification of necessary information, in most cases
this provides a basis for recourse to facts available.  Jurisprudence has confirmed that the last sentence
of Annex II.7 is intended to be a penalty to firms that do not cooperate.  Investigating authorities need
to be able to calculate a dumping margin accurately  and in a timely fashion and need to be able to
address situations where there may be incentives for exporters to provide selective or inaccurateinformation.
However, claims of cooperation or non-cooperati on are not always so clear-cut.  Rather, the
ambiguity may lie not in situations where a firm decides not to cooperate, but where information
provided is incomplete or inaccurate or unable to be verified.  Annex II.5 provides some guidance inthe sense that not all information may be rejected if it is not “ideal in all respects”.  However,
ambiguity remains as to the extent of an interested party acting “to the best of its ability”.
• Australia would appreciate clarification of the proposed amendments to Article 6.6.
Is it the intention of the proponents that by removal of the exception clause at the
beginning of Article 6.6, information supplied through recourse to facts availablewould be required to be verified?  Australia considers that this may be impracticable
in application.
• In relation to the “Method of Applying Facts Available”, the proponents refer to
rejecting submitted and verified data where all requested information had not been
provided.  Reference is made to Annex II.3 and the terms “all information”.  Australiaconsiders that Annex II.5 provides some guidance in this regard?
Australia is concerned that the proposal would mandate authorities use of all submitted
information not proven to be inaccurate.  Australi a considers that the party submitting the information
should be required to prove the accuracy of that information, particularly where it relates to its own
operations.
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