WT/DS602/2  
 
17 September 2021  
(21-7015) Page: 1/6 
 Original: English  
 
CHINA – ANTI -DUMPING AND COUNTERVAILING DUTY MEASURES ON WINE 
FROM AUSTRALIA  
REQUEST FOR THE ESTABLISHMENT OF A PANEL  BY AUSTRALIA  
The following communication, dated  16 September 2021 , from the delegation of Australia  to the 
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.  
 
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1. On 22 June 2021, Australia requested consultations with the People's Republic of China 
("China") pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU"), Article XXII:1 of the General Agreement  on Tariffs and Trade 1994 
("GATT 1994"), Articles 17.2 and 17.3 of the Agreement on Implementation of Article VI of the 
General Agreement on Tariffs and Trade 1994 ("Anti -Dumping Agreement") and Article 30 of the 
Agreement on Subsidies and Countervailing Measures with respect to anti -dumping and 
countervailing duty measures on bottled wine in containers of 2 litres or less imported from 
Australia.1   
2. Australia and China held such consultations on 9 August 2021. Unfortunately, these 
consultations were u nsuccessful in resolving this dispute. As a consequence, Australia is requesting 
the establishment of a panel pursuant to Articles 4.7 and 6 of the DSU, Article 17.4 of the 
Anti-Dumping Agreement, and Article XXIII of the GATT 1994.  
3. Without prejudice to  Australia 's right to take any appropriate future actions, and taking 
into consideration China 's decision not to impose definitive countervailing duties on bottled wine 
from Australia at this time, Australia is not including in this request matters related  to China 's 
measures imposing provisional countervailing duties on bottled wine from Australia and determining 
(i) the existence and amount of countervailable subsidies on bottled wine from Australia and (ii) 
injury caused to the domestic industry in China  by imports of allegedly subsidized bottled wine from 
Australia, including all investigations, determinations, decisions, and actions in relation to those 
measures.  
4. Australia considers that China's measures imposing definitive anti -dumping duties on 
bottled wine from Australia, as set forth in Ministry of Commerce of the People's Republic of China 
("MOFCOM") Notice No. 6 of 2021 (26 March 2021) including any and all annexes and any 
amendments, modifications or replacements thereof, including the initiati on and conduct of the 
investigation, determinations made, decisions taken, and actions related to those measures, are 
inconsistent with China 's commitments and obligations, including under the following provisions of 
the GATT 1994 and the Anti -Dumping Agre ement.  
Interpretation and application of "domestic industry"  
i. Article 4.1 of the Anti -Dumping Agreement because, inter alia , China erred in its 
interpretation and application of the definition of "domestic industry" by, inter alia , 
failing to establish the quantitative and qualitative elements of a major proportion of 
the total domestic production of the like products.  
 
1 WT/DS602/1.  WT/DS602/2  
 
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  Initiat ion of the investigation  
ii. Articles 5.1, 5.2(i), and 5.4 of the Anti -Dumping Agreement because, inter alia , China 
improperly initiated an anti -dumping investigation on the basis of an application that 
was not made "by or on behalf of the domestic industry" a nd because, inter alia , China 
failed to determine, on the basis of an examination of the degree of support for, or 
opposition to, the application expressed by domestic producers of the like product, that 
the application has been made "by or on behalf of th e domestic industry", and because, 
inter alia , China failed to properly determine the domestic production volume of the 
like products.  
iii. Articles 5.2, 5.2(iii), 5.2(iv), 5.3 and 5.8 of the Anti -Dumping Agreement because, 
inter alia , China initiated an invest igation on the basis of an application without 
sufficient evidence, China failed to examine or review the accuracy and adequacy of 
the evidence provided in the application, and China failed to reject the application or 
terminate promptly the investigation given the lack of sufficient evidence.  
Conduct of the investigation  
iv. Articles 6.1, 6.1.1, 6.1.2, 6.1.3 and 6.2 of the Anti -Dumping Agreement because, inter 
alia, China did not provide all interested parties ample opportunity to present all 
relevant informat ion and evidence  and failed to provide all interested parties a full 
opportunity for the defence of their interests, including, inter alia , because it did not 
give due consideration to requests for extensions for which cause had been shown and 
for which gr anting the extension would be practicable and did not grant those 
extensions; because, inter alia , where it formed the view that there were deficiencies 
in the information provided, it did not make the interested parties aware of those 
alleged deficiencies  and give them ample opportunity to rectify such alleged 
deficiencies; and because, inter alia , China did not properly make evidence placed on 
the record by the applicant and other interested parties available promptly to the 
Australian Government and othe r interested parties, and failed to properly provide the 
full text of the written application to the Australian Government.  
v. Article 6.4 of the Anti -Dumping Agreement because, inter alia , China failed to provide 
timely opportunities for all interested parti es to see all non -confidential information 
that was relevant to the presentation of their cases, and to prepare presentations on 
the basis of this information, notwithstanding that it was practicable to do so, including 
inter alia with respect to:  alleged deficiencies in the information provided by the 
interested parties and the basis for disregarding such information; the calculation of 
the output of the domestic industry; the determination of normal value and export 
price; the adjustments to ensure a fair  comparison between normal value and export 
price; differences in price comparability; the calculations of the dumping margins; and 
the determination of injury and causation.  
vi. Articles 6.4, 6.5 and 6.5.1 of the Anti -Dumping Agreement because, inter alia , China 
failed to provide, or require the applicant and interested parties to provide, adequate 
non-confidential summaries of allegedly confidential information that provided 
sufficient detail to permit a reasonable understanding of the substance of the 
inform ation submitted in confidence, and, inter alia , in some instances China failed to 
provide or require the applicant and interested parties to provide any non -confidential 
summary of allegedly confidential information without any indication that there were 
exceptional circumstances and without providing a statement of reasons as to why 
summarization was not possible.  
vii. Articles 6.6 of the Anti -Dumping Agreement because China failed during the course of 
the investigation to satisfy itself as to the accuracy of the information supplied by 
interested parties, including inter alia  the accuracy of the domestic price of wine, the 
accuracy of the statistics of various economic indicators related to the state of China's 
wine industry and the industry data submitted by Chinese domestic companies.  WT/DS602/2  
 
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  viii. Article 6.9 of the Anti -Dumping Agreement because, inter alia , China failed to disclose 
to the interested parties, before the final determinations were made, the essential facts 
under consideration which formed the basis for the  determinations, and because it 
failed to do so in sufficient time for the parties to defend their interests. In this regard, 
China failed to make available all relevant information on the matters of fact, law and 
reasons that led to the imposition of fina l duties and failed to disclose to the interested 
parties, inter alia : the alleged deficiencies in the information provided by the interested 
parties and the basis for disregarding such information; the alternative facts selected 
on the basis of "facts available " and the basis for those selections; the calculation of 
the output of the domestic industry; the calculations of the export prices; the 
determination of normal value and export price; decisions concerning adjustments to 
ensure a fair compar ison of normal value and export price; sufficient details of the 
calculations of the dumping margins; and the determination of injury and causation.  
The use of facts available  
ix. Article 6.8 and paragraphs 1, 3, 5, 6, and 7 of Annex II of the Anti -Dumping Agr eement 
because, inter alia , China improperly based its determinations on the facts available. 
In particular, China was not entitled to reject necessary information submitted by 
interested parties as such information was submitted in a reasonable period of time 
and the interested parties did not significantly impede the investigation. Further, China 
also, inter alia : 
a. failed to take into account information that was verifiable, appropriately 
submitted so that it could be appropriately used in the investigatio n without 
undue difficulties, which was supplied in a timely fashion, and, where 
applicable, which was supplied in a medium or computer language requested 
by China;  
b. improperly, without adequate justification, disregarded information provided 
by interested parties acting to the best of their abilities;  
c. failed to inform supplying parties forthwith of the reasons for not accepting 
evidence or information and failed to provide an opportunity to provide further 
explanations within a reasonable period;  
d. failed to give adequate reasons for the rejection of such information in its 
published determinations; and  
e. failed to exercise special circumspection in making its findings.  
x. Article 6.13 of the Anti -Dumping Agreement because, inter alia , China failed to take 
due acco unt of difficulties experienced by interested parties in supplying information 
requested and failed to provide any assistance practicable, including, inter alia , in its 
assessments, for the purposes of Article 6.8 and paragraphs 1, 3, 5, 6, and 7 of Annex 
II of the Anti -Dumping Agreement, of whether the interested parties had not provided 
necessary information within a reasonable period or had significantly impeded the 
investigation.  
Dumping determination  
xi. Article 2.1 of the Anti -Dumping Agreement because Ch ina failed to determine the 
existence of dumping as defined in Article 2.1.  
xii. Articles 2.2, 2.2.1, 2.2.1.1 and 2.2.2 of the Anti -Dumping Agreement because, inter 
alia, China (i) improperly and without proper justification disregarded sales of the like 
produc t in the Australian domestic market in determining normal value, without 
establishing that either there were no sales of the like product in the ordinary course 
of trade in the Australian domestic market, or that, because of the particular market 
situation  or the low volume of the sales in the domestic market of the exporting 
country, such sales did not permit a proper comparison; and because China failed to WT/DS602/2  
 
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  give reasons and adequate explanations of its methodology and calculations for 
determining normal va lue; (ii) failed to base its calculation of costs on the records kept 
by the exporter or producer under investigation (in whole or in part); and (iii) failed to 
base the amounts for administrative, selling and general costs and for profits on actual 
data o r any other reasonable basis (in whole or in part).  
xiii. Article 2.3 of the Anti -Dumping Agreement, because, inter alia , China failed to 
determine export price on a reasonable basis, and because it failed to give reasons and 
adequate explanations of its methodo logy and calculations relied upon to calculate 
export price.  
xiv. Article 2.4 of the Anti -Dumping Agreement because, inter alia , China failed to make a 
fair comparison between the export price and normal value, including, inter alia , by 
failing to adjust for fa ctors affecting price comparability, failing to indicate what 
information was necessary to make a fair comparison, in part because of its failure to 
disclose its methodology and calculations for determining both export price and normal 
value, and imposing an unreasonable burden of proof on the interested parties.  
xv. Article 2.4.2 of the Anti -Dumping Agreement, because, inter alia , China did not 
establish the margin of dumping on the basis of  a comparison of a weighted average 
normal value with a weighted average of prices of all comparable export transactions.  
xvi. Articles 6.10 of the Anti -Dumping Agreement because, inter alia , China relied upon the 
use of samples that were neither statistically valid on the basis of the information 
available to the authorities at the time of the selection nor the largest percentage of 
the volume of exports from Australia that could reasonably be investigated.  
Determination of injury and causation  
xvii.  Article 3.1 of the Anti -Dumping Agreement because, inter alia , China failed to base its 
determination of injury on positive evidence and an objective examination of: (a) the 
volume of the allegedly dumped imports of bottled wine from Australia and the effe ct 
of these imports on prices in the domestic market for like products; and (b) the 
consequent impact of the allegedly dumped imports of bottled wine from Australia on 
domestic producers of like products. China's failure to meet the obligations under 
Article 3.1 is linked to its failure to comply with Articles 3.2, 3.4 and 3.5 of the Anti -
Dumping Agreement.  
xviii.  Articles 3.1 and 3.2 of the Anti -Dumping Agreement because, inter alia , China 's 
consideration of whether there was a significant increase in the alleged ly dumped 
imports under investigation did not involve an objective analysis based on positive 
evidence due, inter alia,  to errors it made in the analysis of volume relative to 
consumption and in calculation of the market share of Australian and non -subject  
imports.  
xix. Articles 3.1 and 3.2 of the Anti -Dumping Agreement because China 's consideration of 
the effect of the subject imports on the prices of like products in the domestic market: 
(a) did not involve an objective analysis based on positive evidence; (b)  did not 
consider whether there had been significant price undercutting or price depression; 
and (c) did not properly consider whether the effect of subject imports was to prevent 
price increases, which otherwise would have occurred, to a significant degre e. In this 
regard, China has, inter alia : (i) failed to give reasons and adequate explanations of 
the methodology used for calculating prices for subject imports, non -subject imports 
and domestic like products; (ii) failed to consider all the positive evid ence available on 
the record relating to price undercutting and price depression; (iii) failed to conduct a 
counterfactual analysis in the context of making a price suppression finding; and (iv) 
compared volumes and prices of subject imports to domestic li ke product that are not 
comparable and failed to ensure price comparability in its analysis of price effects.  
xx. Articles 3.1 and 3.4 of the Anti -Dumping Agreement because China 's examination of 
the impact of the dumped imports on the domestic industry did n ot include all relevant WT/DS602/2  
 
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  economic factors and indices having a bearing on the state of the domestic industry, 
and: (a) was not an objective analysis based on positive evidence; (b) did not properly 
evaluate the impact of the subject imports on the domestic industry; and (c) was 
conducted in relation to a domestic industry that was wrongly defined under Article 4.1 
of the Anti -Dumping Agreement.  
xxi. Articles 3.1 and 3.5 of the Anti -Dumping Agreement because China failed to: (a) 
demonstrate that the allegedly dum ped imports of bottled wine from Australia, through 
the effects of the alleged dumping, caused injury to the domestic industry; (b) base its 
purported demonstration of the causal relationship on an objective examination of all 
relevant evidence on the reco rd; (c) objectively examine other known factors that 
injured the domestic industry, including, inter alia , non -subject imports from other 
countries, contraction in demand or changes in the patterns of consumption, tariff 
reductions for subject imports of b ottled wine from Australia during the injury period 
of investigation; and (d) not attribute the injuries caused by those other factors to the 
imports of bottled wine from Australia. Moreover, China improperly based its 
assessment of causation on flawed con siderations, examinations, and evaluations 
under Articles 3.2 and 3.4 of the Anti -Dumping Agreement, including, inter alia , a 
flawed determination of price suppression.  
Imposition of duties  
xxii.  Article VI:2 of GATT 1994 and Article 9.1, 9.2, 9.3 and 9.4 of the  Anti-Dumping 
Agreement because, inter alia , China: has imposed anti -dumping duties where all 
requirements for their imposition have not been fulfilled; has not imposed anti -
dumping duties in appropriate amounts; and has imposed anti -dumping duties in 
excess of the margin of dumping that should have been established under Article  2 of 
the Anti -Dumping Agreement.  
Transparency  
xxiii.  Articles 12.1 and 12.1.1(iii) and (iv) of the Anti -Dumping Agreement because, inter 
alia, China failed to provide in its public notice of the initiation of the investigation, or 
in a separate report, adequate information on the basis on which dumping is al leged in 
the application and a summary of factors on which the allegation of injury is based.  
xxiv.  Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement because, inter alia , China 
failed to provide in sufficient detail the findings and conclusions reached on a ll issues 
of fact and law it considered material, all relevant information on the matters of fact 
and law and reasons which have led to the imposition of final measures, and the 
reasons for acceptance or rejection of relevant arguments and claims, includin g, inter 
alia the: facts selected and relied upon on the basis of "facts available " and the basis 
for those selections; calculation of the output of domestic industry; the determination 
of normal value and export price; adjustments made, if any, to underta ke a fair 
comparison; calculation of the dumping margins and the reasons for the calculation 
methodology used; imposition of dumping duties; and the determination of injury and 
causation.  
Consequential claims  
xxv.  Article VI of the GATT 1994 as a consequence of  the breaches of the Anti -Dumping 
Agreement described above.  
xxvi.  Article 1 and 18.1 of the Anti -Dumping Agreement as a consequence of the breaches 
of the Anti -Dumping Agreement described above.  
5. China's measures also appear to nullify or impair the benefits  accruing to Australia directly 
or indirectly under the cited agreements.  
6. Therefore, Australia respectfully requests, pursuant to Articles 4.7 and 6 of the DSU, 
Article  17.4 of the Anti -Dumping Agreement, and Article  XXIII of the GATT 1994, that the Dis pute WT/DS602/2  
 
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  Settlement Body establish a panel to examine this matter, with the standard terms of reference as 
set out in Article 7.1 of the DSU.  
7. Australia asks that this request be placed on the agenda for the meeting of the Dispute 
Settlement Body to be held on 27 September 2021.  
 
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