WT/DS598/1, G/L/1382  
G/ADP/D135/1, G/SCM/D130/1  
 
21 December 2020  
(20-9227) Page: 1/4 
  Original: English  
 
CHINA – ANTI -DUMPING AND COUNTERVAILING DUTY MEASURES ON BARLEY FROM 
AUSTRALIA  
REQUEST FOR CONSULTATIONS BY AUSTRALIA  
The following communication, dated  16 December 2020 , from the delegation of Australia  to the 
delegation of China , is circulated to the Dispute Settlement Body in accordance with Article 4.4 of 
the DSU.  
_______________  
 
1. My authorities have instructed me to request consultations with the Government of the 
People's Republic of China ("Chin a") 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 
Implemen tation 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 
("SCM  Agreement") with respect to measures imposing anti -dumping duties and countervailing 
duties on barley imported from Australia, as set forth in Ministry of Commerce of the People's 
Republic of China ("MOFCOM") Notice No. 14 of 2020 (18  May 2020), including any and all annexes 
and any amendments thereof, and Notice No. 15 of 2 020 (18 May 2020), including any and all 
annexes and any amendments thereof. China's measures appear to be inconsistent with China's 
obligations including under the provisions of the GATT 1994, the Anti -Dumping Agreement and the 
SCM Agreement.  
2. In parti cular, China's anti -dumping and countervailing duty measures on barley from 
Australia appear to be inconsistent with China's obligations under, among others, the following 
provisions of the GATT 1994, the Anti -Dumping Agreement and the SCM Agreement.  
i. Articles 2.1, 2.6, 3.1, 3.6 and 5.2 (i) and (iv) of the Anti -Dumping Agreement and 
Articles 6, 11.2(i) and (iv), 15.1, footnote 46 and 15.6 of the SCM Agreement because, 
inter alia, China incorrectly defined the product under consideration and also incorrectly 
defined the like products.  
ii. Article 4.1 of the Anti -Dumping Agreement and Article 16.1 of the SCM Agreement 
because, inter alia,  China erred in its interpretation and application of the definition of 
"domestic industry".  
iii. Articles 5.1, 5.2 and 5.4 of the Anti -Dumping Agreement and Articles 11.1, 11.2 and 
11.4 of the SCM Agreement because, inter alia,  China improperly initiated 
investigations on the basis of applications that were not made "by or on behalf of the 
domestic in dustry" and 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 beh alf of the domestic industry".  
iv. Articles 5.2, 5.3 and 5.8 of the Anti -Dumping Agreement and Articles 11.2, 11.3 and 
11.9 of the SCM Agreement because, inter alia,  China initiated investigations without 
sufficient evidence, China failed to examine or review  the accuracy and adequacy of WT/DS598/1 • G/L/1382 • G/ADP/D135/1 • G/SCM/D130/1  
 
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  the evidence provided in the application, and China failed to reject the application or 
terminate promptly the investigation given the lack of sufficient evidence.  
v. Articles 6.1 and 6.2 of the Anti -Dumping Agreement and Article s 12.1 and 12.2 of the 
SCM Agreement because, inter alia,  China did not provide all interested parties and 
interested Members the opportunity to present all relevant information and evidence.  
vi. Article 6.2 of the Anti -Dumping Agreement because, inter alia,  China did not provide 
all interested parties a full opportunity for the defence of their interests.  
vii. Article 6.4 of the Anti -Dumping Agreement and Article 12.3 of the SCM Agreement 
because, inter alia,  China failed to provide timely opportunities for all int erested parties 
to see all information that was relevant to the presentation of their cases, and to 
prepare presentations on the basis of this information.  
viii. Article 6.4 and 6.5.1 of the Anti -Dumping Agreement, and Articles 12.3 and 12.4.1 of 
the SCM Agreeme nt because, inter alia,  China failed to provide, or require the applicant 
and interested parties to provide, adequate non -confidential summaries of allegedly 
confidential information.  
ix. Articles 6.6 of the Anti -Dumping Agreement and Articles 12.5 of the SCM 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 barley, and the accuracy of the statist ics of various 
economic indicators related to the state of China's barley industry.  
x. Article 6.8, and Annex II, of the Anti -Dumping Agreement and Article 12.7 of the 
SCM Agreement because, inter alia,  China improperly based its determinations on the 
facts a vailable and because, inter alia,  it: 
a. failed to take into account information that was verifiable, appropriately 
submitted so that it could be appropriately used in the investigation 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 justification disregarded information provided by interested 
parties acting to the best of their abilities;  
c. failed to inform supplying parties fort hwith for the reasons for not accepting 
evidence or information or provide an opportunity to provide further 
explanations within a reasonable period;  
d. failed to give reasons for the rejection of such information in its published 
determination; and  
e. failed to exercise special circumspection in making its findings.  
xi. Article 6.9 of the Anti -Dumping Agreement and Article 12.8 of the SCM Agreement 
because, inter alia,  China failed to disclose to the interested parties the essential facts 
under consideration which form the basis for the determinations in sufficient time for 
the parties to defend their interests.  
xii. Article 6.10 of the Anti -Dumping Agreement because, inter alia, China did not 
determine individual margins of dumping for each known exporter or producer of barley 
concerned under investigation.  
xiii. Article 6.13 of the Anti -Dumping Agreement and 12.11 of the SCM Agreement because, 
inter alia, China failed to take due  account of difficulties experienced by interested 
parties in supplying information requested and failed to provide any assistance 
practicable.  WT/DS598/1 • G/L/1382 • G/ADP/D135/1 • G/SCM/D130/1  
 
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  xiv. Article 2.1 of the Anti -Dumping Agreement because China failed to determine the 
existence of dumping as defined in Article 2.1.  
xv. Article 2.2 of the Anti -Dumping Agreement because, inter alia,  China improperly 
determined normal value by reference to third country sales without proper 
justification, and its choice of third country sales was not "comparable", 
"represent ative" or from an "appropriate third country".  
xvi. Article 2.3 of the Anti -Dumping Agreement, because, inter alia,  China did not determine 
export price on a reasonable basis when it improperly discarded the information 
provided by exporters and producers on t he export price of barley, and determined the 
export price by reference to third party information.  
xvii.  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 by  failing to adjust 
for factors affecting price comparability and failing to indicate what information was 
necessary to make a fair comparison including failing  to disclose its methodology for 
determining both export price and normal value.  
xviii.  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 all comparable export 
transactions.  
xix. Articles 1.1, 1.2, 2.1, 2.2 and 2.4 of the SCM Agreement because, inter alia,  China 
improp erly established the existence of a subsidy, as defined in paragraph 1 of Article 
1 of the SCM Agreement, including by improperly determining a "benefit" was conferred 
on Australian producers of barley; and improperly determined the alleged subsidy was 
specific to certain enterprises within Australia.  
xx. Articles 3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping Agreement, and Articles 15.1, 15.2, 
15.4, and 15.5 of the SCM Agreement, because, inter alia,  on the matter of the alleged 
injury, China's analysis of the ef fects of imports under investigation and alleged causal 
link was not based upon an objective examination of positive evidence, an examination 
of all relevant economic factors and indices having a bearing on the state of the 
industry, an examination of any known factors other than dumped imports, or an 
examination of all relevant evidence before the authorities.  
xxi. Article VI:2 of GATT 1994 and Article 9.1, 9.2 and 9.3 of the Anti -Dumping Agreement 
because, inter alia,  China: has imposed anti -dumping duties whe re all requirements 
for their imposition have not been fulfilled; has not imposed anti -dumping duties in 
appropriate amounts; has not imposed anti -dumping duties on an individual basis; and 
has imposed anti -dumping duties in excess of the margin of dumping  that should have 
been established under Article 2.  
xxii.  Article VI:3 of the GATT 1994 and Article 19.4 of the SCM Agreement because, inter 
alia, China used an inadequate methodology to determine an amount of subsidization, 
and therefore improperly levied count ervailing duties on imported Australian barley 
products in excess of the amount of subsidy found to exist.  
xxiii.  Articles 12.2  and 12.2.2 of the Anti -Dumping Agreement and Articles 22.3  and 22.5 
of the SCM Agreement because, inter alia,  China failed to provid e in sufficient detail 
the findings and conclusions reached on all issues of fact and law it considered material, 
and the reasons for acceptance or rejection of relevant arguments and claims.  
xxiv.  Article VI of the GATT 1994 as a consequence of the breaches of the Anti -Dumping 
Agreement and the SCM Agreement described above.  
xxv.  Article 1 of the Anti -Dumping Agreement as a consequence of the breaches of the Anti -
Dumping Agreement described above.  WT/DS598/1 • G/L/1382 • G/ADP/D135/1 • G/SCM/D130/1  
 
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  xxvi.  Articles 10 and 32.1 of the SCM Agreement as a consequence of  the breaches of the 
SCM Agreement and GATT 1994 described above.  
3. China's measures also appear to nullify or impair the benefits accruing to Australia directly 
or indirectly under the cited agreements.  
4. Australia reserves the right to address addition al measures and claims under other 
provisions of the WTO Agreement regarding the above matters during the course of the 
consultations.  
We look forward to receiving your reply to the present request and to fixing a mutually convenient 
date for consultations . 
 
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