G/ADP/Q1/KEN/4  
G/SCM/Q1/KEN/4  
G/SG/Q1/KEN/3  
 
8 October 2019 
(19-6486) Page: 1/3 
Committee on Anti -Dumping Practices  
Committee on Subsidies and Countervailing Measures  
Committee on Safeguards  Original: English  
 
NOTIFICATION OF LAWS AND REGULATIONS UNDER  
ARTICLES 18.5, 32.6 AND 12.6 OF THE AGREEMENTS  
QUESTION S POSED BY THE UNITED  STATES  
REGARDING THE NOTIFICATION  OF KENYA1 
The following communication dated 4 October  2019, is being circulated at the request of the 
delegation of the United States.  
 
_______________  
 
 
The United States thanks Kenya for its notification concerning its trade remedy laws (i.e., Kenya 
Trade Remedies Act), and poses the following questions:  
 
Question 1  
 
In Part I, Article 2, Kenya defines the domestic market as "the market within the country including 
the East African Community (EAC)  as a single customs territory. " (emphasis added) On page 4 of 
the same section, Kenya defines interested parties, in part, as a producer of the like product in 
Kenya .  Additionally, various other articles in the Kenya Trade Remedies Act, in both the antidumping 
and injury sections refer  to domestic market and like product as the product produced in Kenya, as 
opposed to the entire EAC.  The injury sections of the Kenya Trade Remedies Act also appear to limit 
the analysis of injury to the domestic industry in Kenya.  
 
• Will the Kenya Trade R emedies Agency ( "Agency ") conduct trade remedy investigations 
(i.e., antidumping (AD), countervailing duty (CVD), safeguard (SG)) on a national level 
(i.e., only on behalf of the producers/exporters in Kenya) or on behalf of the entire EAC?  
If the former,  please clarify the definition of "domestic market, " which presently includes 
the EAC  in its entirety.  
 
• Will AD/CVD/SG duties applied by Kenya be applicable only to imports of the investigated 
product into Kenya or imports into the entire EAC?  
 
Question 2  
 
Part II, Article 5 states that the Agency will conduct trade remedy investigations and advise the 
Cabin et Secretary on the results of these investigations.  The role of the Cabinet Secretary is further 
explained in Part IV, Article 23, as well as Article 21 of the Second Schedule.  
 
• Please provide additional clarification regarding the process by which the Agency 's 
recommendation is passed to the Cabinet Secretary.  
 
• What role does the Cabinet Secretary have in the imposition of trade remedy measures?  
Specifically, does the Cabinet Secretary have the ability to modify the duty recommended 
by the Agency, or o nly to approve or reject the recommendation from the Agency?  If the 
Cabinet Secretary may modify the duty, explain any limitations on such modifications, such 
as changing the form or amount of duty.  
                                                
1 G/ADP/N/1/KEN/3 - G/SCM/N/1/KEN/3 - G/SG/N/1/KEN/2 (dated 21 May 2019).  G/ADP/Q1/KEN/4 • G/SCM/Q1/KEN/4 • G/SG/Q1/KEN/3  
 
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  • What factors does the Cabinet Secretary take into consid eration in determining whether to 
impose a trade remedy measure or modify the amount?  
 
Question 3  
 
Will interested parties need to register with the Agency to participate in a trade remedy investigation 
and to gain access to case files?  If so, what are th e registration requirements?  
 
Question  4 
 
Will Kenya 's trade remedy case files be accessible by the general public, or will case files only be 
accessible by the interested parties to the proceeding?   How will Kenya 's trade remedy case files be 
maintained (e.g., hard -copy files, electronic files)?   Please describe the process by which interested 
parties will be able to access the case file to review submissions made by other parties or documents 
put on the case file by the Agency?   Will the case file ever be closed to further review or will it be 
accessible even after the case has been closed?  
 
Question 5  
 
In Article 10 of the Second Schedule, Kenya states that the Agency will notify the government of an 
exporting country of the initiation of an i nvestigation.   Will the Government of Kenya also notify the 
government of an exporting country of the existence of a properly documented petition/application 
prior to initiation, as provided for in Article 5.5 of the Agreement on Implementation of Article VI of 
the General Agreement on Tariffs and Trade 1994 (Antidumping Agreement)?  
 
Question 6  
 
In various articles throughout the Kenya Trade Remedies Act (e.g., Part IV, Articles 29 and 35) 
Kenya states that decisions of the Agency may be appealed to the "High Court. " 
 
• Please describe in further detail Kenya 's judicial system, the High Court, and r ole the 
High Court plays in trade remedy proceedings.  
 
Article 35, Part IV, indicates that persons may appeal to "the High Court within thirty days of the 
determination, recommendation or decision being made for a review. "  Does the 30 -day period begin 
upon publication in the Kenya Gazette or at an earlier date?  For applications under Article 36, Part  IV 
to the Agency or Cabinet Secretary, is there a timeframe within which appeals need to be lodged?  
Also, under Article 36, Part IV, what is the difference between an "obvious error " and a "common 
mistake ", and who are the "relevant parties " who must be affected by a common mistake?  
 
Question 7  
 
In Part IV, Articles 27 to 29, Kenya describes how it will handle confidential information in its trade 
remedy proc eedings.  Please provide further information regarding how the Government of Kenya 
will ensure the confidentiality of information provided by parties involved in its trade remedy 
proceedings.   For example, will there be penalties if confidential data is ac cidently or internationally 
disclosed?  Will Kenya require that parties file public versions of confidential documents?  How will 
Kenya ensure that the public versions of case documents provide sufficient detail to be meaningful?  
 
Question 8 
 
In Part IV, A rticle 37, Kenya states that in any proceedings conducted under the Kenya Trade 
Remedies Act (other than criminal proceedings) the standard of proof is on "a balance of 
probabilities. "  Please describe this standard of proof in further detail . 
 
Question 9  
 
In Article 11, paragraph 1(b) of the Second Schedule, Kenya states that the Agency may terminate 
an investigation if it determines that the margin of dumping is de minimis . 
 
• Does this finding apply to the preliminary determination or only to a final dete rmination?  
In other words, if the dumping margin is de minimis at the time of the preliminary G/ADP/Q1/KEN/4 • G/SCM/Q1/KEN/4 • G/SG/Q1/KEN/3  
 
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  determination, will Kenya terminate the investigation at that time or continue the 
investigation?  
 
• What if the preliminary injury determination is negative?   Will the case be terminated, or 
will it continue until the final determination ? 
 
Question 10  
 
In Article 17, paragraph 4 of the Second Schedule, Kenya states that provisional measures shall be 
applied for a period not exceeding 6 months and, if requested by e xporters, the period can be 
extended to nine months.  Article 7.4 of the Antidumping Agreement states that provisional 
measures can be applied in lengths ranging from six to nine months only in circumstances where a 
duty lower than the dumping margin that is sufficient enough to remove injury (i.e., application of 
a lesser duty).  Since Kenya 's regulations state that provisional measures may be applied for a 
period up to 9 months, does this mean that Kenya intends to examine whether the application of 
lesser duty is appropriate in all of its AD/CVD investigations?  Or will Kenya only examine whether 
lesser duty is appropriate upon request?  
 
 
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