TN/RL/W/257  
 
15 June 2015  
(15-3069)  Page: 1/5  
Negotiating Group on Rules  Original: English  
 
 ANTI-DUMPING: ISSUES OF TRANSPARENCY AND DUE PROCESS 
COMMUNICATION FROM CHILE; COLOMBIA; COSTA RICA; HONG KONG, CHINA; ISRAEL; JAPAN; 
KOREA, REP. OF; NORWAY; SINGAPORE; SWITZERLAND; THE SEPARATE CUSTOMS  
TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU; AND THAILAND 
The following communication, dated 12 June 2015, is being circulated at the request of the 
Delegations of Chile; Colombia; Costa Rica; Hong  Kong, China; Israel; Japan; Korea, Rep. of; 
Norway; Singapore; Switzerland; the Separate Cu stoms Territory of Taiwan, Penghu, Kinmen and 
Matsu; and Thailand.  
_______________ 
 
 1  INTRODUCTION 
As stated in the most recent communication (TN/RL/W/256)
1, in "recalibrating" and focusing on 
what is "doable", we consider it appropriate to kick off the discussions with a number of elements of the un-bracketed textual amendments of the AD Agreement in the communication from the 
Chair of 21 April 2011 (TN/RL/W/254, "the 2011 AD Text"), with a focus on due process and 
transparency. As noted, we had witnessed grow ing convergence among Members on these issues. 
A number of elements of the un-bracketed text am endments could form core deliverables in the 
AD part of the work program, together with other AD issues as appropriate.  
 
For following up the "due process and transparency" part of TN/RL/W/256, this paper intends to show our more concrete views on substance on these issues by presenting (a) our conceptual 
understanding of "WTO transparency", "transpare ncy in the AD proceedings" and "due process", 
(b) a number of elements of the un-bracketed text  amendments that relate to transparency and 
due process, and (c) our views on why these issues should be addressed referring to information 
on recent dispute settlement cases as necessary.  
 Transparency of AD investigation procedures and due process rights are fundamental and are 
critical aspects for improving the disciplines, principles and effectiveness of the AD regime while 
preserving basic concepts.
2 Transparency and due process are vital to interested parties. Parties 
need information and reasonable procedures in order to participate effectively in an investigation and defend their interests. This will be impossible unless the parties are kept fully informed of all 
individual steps and procedures undertaken by the authority from the initiation of the investigation 
until the imposition of AD duty, have the opportunity to access all public/non-confidential information on the record of an investigation in a timely manner, are given sufficient time to 
prepare their factual and legal submissions, and are provided with an explanation (either in a 
published notice or a separate report) which provides details on the authority's assessment of the evidence and its consideration of comments from interested parties.    
Transparency and due process also benefit the inve stigation authority. They enable the authority 
to make fair, impartial and even-handed determin ations that can withstand eventual challenges. 
Such determinations are possible only where both domestic and foreign interested parties are 
given sufficient opportunity to review record ev idence and submit comments and rebuttals. Where 
transparency and due process are properly observed, that would leave fewer issues that could 
                                               
1 "Recalibration of Negotiations on Anti-Dumping" of 1 April 2015 (TN/RL/W/256). 
2 See Ministerial Declaration (WT/MIN(01)/DEC/1), 20 November 2001, para. 28. TN/RL/W/257 
 
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  reasonably be raised in disputes against the authority's determinations that may be brought before 
courts and WTO Dispute Settlement Body.  We continue to consider that improvements in substantive AD rules constitute important elements 
of the Rules package. We reserve our right to submit papers regarding such other issues as 
appropriate. We encourage other Members to cont ribute to the discussions with their points of 
view.  
 
2  WTO TRANSPARENCY (TRANSPARENCY BETWEEN WTO MEMBERS ON AD PRACTICES AND POLICY) [ARTICLE 16.4, ARTICLE 18.6, ANNEX 3] 
Transparency between WTO Members on AD practi ces and policy would be useful. One idea would 
be for Members to periodically update the list their definitive measures in their semi-annual report 
to the WTO Committee. This will enable other Members and their exporters to be fully aware of such measures without the need to perform time-consuming research. 
 
It is also important, as a matter of transparency, that all participants in international trade be informed of the anti-dumping policies and practice s of individual Members. The AD Agreement may 
provide such opportunities as policy and practice reviews at the Committee on Anti-Dumping 
Practices.  3  TRANSPARENCY IN THE AD PROCEEDINGS 
3.1  Disclosure [Article  6.9, Article 6.9 bis] 
A closely related issue is the process for disclosure of information on the record. Timely and 
complete disclosure is the starting point of adequate transparency and due process of AD 
investigations. In particular, the disclosure of essential facts relating to provisional and final 
determinations provides pivotal opportunities for interested parties to present their views on the authority's assessment of evidence on the record. For this purpose, it is important to (a) clarify the 
information that must be disclosed as essential facts, and (b) define the time period after 
disclosure during which interested party may submit their comments, providing them with 
sufficient time to enable effective participation and defense by the interested parties.   
It is also important that authorities disclose the preliminary and final dumping margin calculations 
to each exporter that received an individual rate  This will enable the exporters to comment on any 
errors they may find in the authority's calculations; this in turn will enable authorities to make 
prompt corrections of errors in dumping margin calculations, thereby avoiding time-consuming 
court litigation or subsequent review proceeding.  
3.2  Public Notice and Explanation of Dete rmination [Article 12.1.1, Article 12.2.1, 
Article 12.2.2, Article 12.3 Arti cle 4.1 (i) fn14 & Article 6.10.3] 
Public notices (or reports) regarding the authority's initiation, and its preliminary and final 
determinations are crucial to transparency. They are the only instruments that demonstrate to 
interested parties and the public that the authority (a) made impartial and even-handed 
assessments of the record evidence and of comme nts submitted by interested parties, and (b) 
made its findings conclusions based on such an impartial assessment. Moreover, these 
notices/reports must contain sufficient explanation "to guarantee that interested parties are able 
to pursue judicial review of a final determination as provided in Article 13 of the Anti-Dumping 
Agreement  and Article 23 of the SCM Agreement ."
3 The authorities are also required to state 
therein "the facts, law and reasons that have led to the imposition of [AD] duties." 4 The AD 
Agreement should contribute to further improv ement of transparency of these authorities' 
decisions, by further clarifying the information that should be discussed in the notices of initiation and preliminary and final determinations.
5  
                                               
3 Appellate Body Report, China – GOES  (WT/DS414/AB/R), para. 258.   
4 As discussed above, Appellate Body Report, China – GOES (WT/DS414/AB/R) para 258.   
5 The Agreement should explicitly require that the notice of initiation provide a description of the 
product under consideration, the name s of known exporters, and information on the domestic like product, the 
domestic industry, the proc edural background, any procedures under Article 6.10, and next steps in the 
process. The AD Agreement should also clarify that notices of preliminary and final determinations must 
provide the calculations of the margins of dumping, s ee Panel Report, China – GOES  (WT/DS414/R), TN/RL/W/257 
 
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The Agreement should also clarify that these notice requirements apply to proceedings under Articles 9.3 and 9.5, and to decisions under Articl e 10. If such notices are not provided, interested 
parties in would not necessarily have any way of knowing the status and results of the 
proceedings. Moreover, it would be difficult for the public to know whether (and how frequently), a 
particular Member conducts these reviews and makes such decisions.  
3.3  Accountability (Notification)  [Article 2.4.1, Article 5.5] 
Article VI of the GATT provides that dumping is to be condemned if it causes or threatens material 
injury to an industry of an importing Member. Logically, "condemnation" of dumping would be appropriate only if the exporter knows that it  is dumping. The exporters must be able to 
understand in detail the methodologies and information used by authorities – including the 
exchange rates the authorities will use to compare prices that are in different currencies. This will allow exporters to organize their operations and set their export prices at a level that will not be 
dumped. 
 Further, exporters should not be condemned by unsubstantiated allegation. Improvements to 
Article 5.5 would be useful in this regard.  
 3.4  General Participation Rights [Article  2.4.3, Article 6.10. 1, Article 9.3.2] 
The right of interested parties to participate in AD proceedings can be guaranteed only when the 
authority's procedures and practices are fully discl osed and published. The current AD Agreement, 
however, does not clarify all procedures and practices that the authority must publish. For example, the current AD Agreement does not set forth any procedures which permit the parties to 
comment on product matching. Product matching criteria/categories are fundamental to make 
apples-to-apples "fair comparisons" in the dumping analysis. It would promote effective 
participation by interested parties, and also would provide authorities with useful input from 
parties that know the product well, and thus help the authority to make "fair comparisons" as 
required by Article 2.4.
6  
 Greater transparency is also needed with respect to refund procedures; a lack of transparent and 
effective refund procedures would have a chilling effect on imports. The AD Agreement should 
require authorities to publish their refund procedures. Without published rules, refund proceedings could be practically unavailable to exporters and importers. 
 
Participation rights can also be enhanced in another context – the "limited examination" of certain producers/exporters on sampling. There, the consul tation of trade associations will enable the 
authority to make sure that the "starting pool", from which it makes its selection sufficiently 
representative, full utilizing the trade association's knowledge.
7 
 3.5  Accessibility to Non-Confidential In formation [Article 6.4, Article 6.4 bis, 
Article 6.5.1] 
As discussed above, the transparency of the info rmation on the record is fundamental to the 
fairness of procedures under the AD Agreement. Parties must have timely access to all non-
confidential record information in order to defend their interests effectively. The Panel in Thailand 
－ H-Beams  stated that the due process rights of interested parties are "predicated on having 
                                                                                                                                               
paras. 7.333). It should also require that the notices provide the authorities’ reasons for excluding certain 
domestic producers from the domestic industry, and for the sele ction of examined exporters and producers.  
6 We note that, "the authority must , at a minimum, inform the parties of the product groups with regard 
to which it will conduct the price comparisons." Appellate Body Report, EC – Fasteners (China)  
(WT/DS397/AB/R), para. 490. 
7 See Panel Report, EC – Salmon (Norway) , paras. 7.163 ("an assessment of whether a selection of 
interested parties has been made consistently with the second sentence of Article 6.10 may involve checking whether the starting pool of interested parties from which that selection was made is permissible"); Panel 
Report, EU – Footwear (China)  (WT/DS405/R), para. 7.220 ("the fact that the [authority] made its selection 
after consultations with the representatives of the [ ] producers and [ ] authorities [in the exporting country], 
taking into account their views, and, ultimately, with their agreement" supported th e Panel’s finding that the 
authority did not act "inconsistently with Article 6.10 with regard to the selection of companies for limited 
examination". TN/RL/W/257 
 
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  timely access to relevant information."8 For this purpose, the AD Agreement should clarify that all 
information on the record (consistent with the protection of confidential information) must be disclosed timely to interested parties in an organized manner. Providing guidance on the format and content of non-confidential summaries of confidential information also will promote 
transparency. 
 4  DUE PROCESS 
4.1  Application [Article 5.2, Article 5.2 fn16,  Article 5.3 fn17, Article 5.4, Article 5.5, 
Article 5.10 bis] 
As discussed, fair, impartial and even-handed decisions can be achieved only when the due 
process rights of interested parties, e.g.  sufficient opportunities to submit evidence and comments, 
are duly observed. As the first step, the AD Agreement should specify in detail the information 
which must be included in the application. This will enable interested parties to review the accuracy and adequacy of information in the application.
9 Also, authorities must review readily 
available sources to confirm that the application includes sufficient information that is readily 
available to identify domestic producers. In ad dition, to avoid undue burden of the interested 
parties who have had a negative final determinatio n, back to back investigations for the same 
product within one year after a previous negative final determination should not be initiated. 
 4.2  Questionnaire [Article 6.1.1 new, Articl e 6.1.1 fn20, Article 6. 1.1 bis, Article 6.13] 
Issuance of the questionnaire is the next major due-process step in the investigation. The 
authority must first identify the publicly-known exporters and foreign producers to which the 
authority will send questionnaires (or from wh ich the authority will choose a "sample" where 
exporters/producers are too numerous for individual examination). Here too, authorities must look 
beyond the application to ensure that they properly identify all relevant exporters. It is particularly 
important to start with the correct "pool" of exporters in order for the investigation authority to choose properly a sample. This process would ensure that authority requests the information it 
needs for its determination from the appropriate exporters and foreign producers.  
 Due process also requires that the parties have sufficient time to respond to questionnaires. The AD Agreement should clarify that the 37-day period for the questionnaire response must be given 
to responding parties for preparation of thei r responses, exclusive from other procedural 
requirements. Where the responses must be tran slated into the authority's language, and the 
translation must be certified, additional time should be provided for preparation of the certification.  
 
When the authority needs further information or clarification, "issuing supplemental questionnaires or deficiency letters … may be highly commendable."
10 The AD Agreement can be improved by 
clarifying that the authority, when issuing a su pplemental questionnaire, must provide the "ample 
opportunity" under Article 6.1.11 
 When an interested party asks the authority for help in preparation of the response, the authority 
should assist it, at least providing timely clarifications of questionnaires.
12  
 4.3  Verification [Article 6.7, Annex 1] 
It is imperative to allow interested parties to make sufficient preparations to enable them to 
participate effectively and successfully in on-the-spot investigations (verifications). For this purpose, the authority should issue, well in advance of the visit, (a) advance notice regarding 
                                               
8 Panel Report, Thailand – H-Beams  (WT/DS122/R), para. 7.150 
9 The AD Agreement should specify that an applic ation should include the following information: 
domestic producers and associations supporting the application; all known domestic producers/associations; 
and the volume and value of domestic production of like product by each category, the sources of the 
information provided and, where re levant, the method used to derive  prices from that information. 
10 Panel Report , US – Oil Country Tubular Goods Sunset Reviews (Article 21.5)  (WT/DS268/RW), 
para. 7.116. 
11 The Appellate Body has stated "this obligation appl ies also to information requests". Appellate Body 
Report, EC – Fasteners (China)  (WT/DS397/AB/R), para. 615. 
12 The Appellate Body pointed that "Article 6.13 thus underscores that ‘cooperation’ is, indeed, a two-
way process involving joint effort." Appellate Body Report, US – Hot-Rolled Steel  (WT/DS184/AB/R), para. 103. TN/RL/W/257 
 
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  intended verifications, and (b) a list of topics to  be addressed as well as the types of supporting 
documentation that the party must make available during the verification. These procedures also would enable the authority to conduct verifications efficiently and fairly.   
A written verification report should be issued , as some Members already do. A written report 
enables the verified party to understand and comment on the authority's findings. It also benefits authorities, enabling them to prove in any subseque nt dispute that their verification fulfilled all 
relevant requirements set forth in the AD Agreement.
13  
 4.4  Facts Available (procedural) [Annex 2] 
Various panel and Appellate Body reports have cl arified the types of secondary information that 
the authorities may use as the facts available, and procedures that the authorities should follow to 
decide on the source of the facts available. It wo uld benefit both authorities and interested parties 
to embody these clarifications in the AD Agreement.
14 
 
4.5  Preliminary Determination [A rticle 7.1, Article 10.8 bis] 
Current provisions of Article 12.2 and 12.2.1, which apply to preliminary as well as final 
determinations, assume that a provisional measure will be imposed only after the authority 
conducts certain investigation processes, such issuance and review of the questionnaire, and 
submission of comments by interested parties.15 It would be beneficial to state explicitly these 
procedures, which are already contemplated in the AD Agreement, as conditions to reach 
preliminary determinations. 
 4.6  Reviews [Article 9.5.1, Article 9.5.2, Article 9.5.3, Article 11.2, Article 11.2 fn35] 
The AD Agreement should provide further procedural rules for new shipper reviews, which would 
improve the transparency of the AD regime.   
It would also be useful and consistent with DS B precedents to clarify that Article 11.2 reviews 
include modifications to the level of the duty. As the panel in US – Shrimp II (Viet Nam) found, the 
current "Article 11.2 provides that if an investigating authority: (i) receives a request from an interested party; … then the authority must undertake a review of the need for the continued 
imposition of the duty."
16 It further clarified that "the outcom e of an Article 11.2 review may be a 
modification of the individual duty rates imposed on individual producers/exporters."17 
 
 
__________  
 
                                               
13 See discussion on this issue at Panel Report, Korea – Certain Paper  (WT/DS312/R), para. 7.188, 
7.192. 
14 The panel in Mexico – Anti-Dumping Measures on Rice , for example, clarified that the current AD 
Agreement requires that the authority "check the appl icant's information against information obtained from 
other interested parties" and undertake "the evaluati ve, comparative assessment . . . to assess whether the 
information provided by the applicant was indeed the best information available." Panel Report, Mexico – Anti-
Dumping Measures on Rice  (WT/DS295/R), para. 7.167. Such information would necessarily include 
information that is "reasonably available" to the authorit y. On the other hand, "it may indeed be the case that 
a failure to provide one element of information undermines the usability of information that is submitted, making it unduly difficult to use the information su bmitted in making determin ations".  Panel Report, US – 
Steel Plate  (WT/DS206/R), para. 7.67. Similarly, the panel in Korea – Certain Paper  also confirmed that, where 
the responding party did not submit financial statemen ts and accounting records,  "we do not see how the 
domestic sales data submitte d by the [responding party] could have b een considered reliable and taken into 
consideration by the [aut hority]." Panel Report, Korea – Certain Paper  (WT/DS312/R), para. 7.64. 
15 These procedures would be necessary in order for authorities to meet the requirements of 
Articles 12.2 and 12.2.1 which, in relevant part, require the authority to publish "in sufficient details findings 
and conclusions on all issues of fact and law considered material by the investigating authorities", and set forth 
therein "matter of fact and law which have le d to arguments being accepted or rejected." 
16 Panel Report, US – Shrimp II (Viet Nam) (WT/DS429/R), para. 7.368. 
17 Ibid, para. 7.369.