WORLD TRADE  
ORGANIZATION   
TN/RL/GEN/180 
9 November 2012 
 (12-6185) 
Negotiating Group on Rules Original: Spanish 
  
 
AGREEMENT ON IMPLEMENTA TION OF ARTICLE VI 
OF THE GENERAL AGREEM ENT ON TARIFFS AND 
TRADE 1994 - TRADE AND DEVELOPMENT 
 
Communication from Cuba, Ecuador and Nicaragua 
  
 The following communication, dated 2 November 2012, is being circulated at the request of 
the delegations of Cuba , Ecuador and Nicaragua. 
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PROPOSAL FOR ARTICLE 15 ON DEVELOPING COUNTRY MEMBERS 
 
  This paper contains a proposed text for Article 15 ( Developing Country Members ), taking into 
account various issues that are under discussion in the negotiations on the Agreement on 
Implementation of Article VI of  GATT 1994 and other elements whic h, due to their developmental 
impact, should be established as mandatory provisions in respect of special a nd differential treatment 
of the developing countries.  I. BACKGROUND 
1. At the request of the Special Session of the Committee on Trade and Development, the 
WTO Secretariat drafted JOB(09)/94 of 8 Septembe r 2009, which is a compilation of special and 
differential treatment provisions in WTO Agreements  and Decisions.  Out of the 15 Agreements and 
Decisions that were analysed, the Agreement on Implementation of Article VI of the GATT 1994 
(hereinafter the "Anti-Dumping Agreement") is the one that contains the fewest provisions on special 
and differential treatment.  In fact it has only one provision, namely Article 15, which merely 
recognizes that " special regard  must be given " by developed country Members to the special situation 
of developing country Members when considering th e application of measures, and that possibilities 
of constructive remedies " shall be explored " before applying anti-dumping duties where they would 
affect the essential interests of developing country Members. 
2. In US - Steel Plate (DS206), the Panel held that "Members cannot be expected to comply with 
an obligation whose parameters are entirely undefine d.  In our view, the first sentence of Article 15 
imposes no specific or general obligation on Members to  undertake any particular action.  Similarly, 
in European Communities - Anti-Dumping Duties on Malle able Cast Iron Tube or Pipe Fittings from 
Brazil  (DS219), the Panel found that this senten ce "clearly contains no operational language 
delineating the precise extent or nature of that oblig ation or requiring a developed country Member to 
undertake any specific action". TN/RL/GEN/180 
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  3. In EC - Bed Linen (DS141), the Panel established that th e second sentence of Article 15 only 
required Members to "actively consider, with an open mind, the possibility of applying a constructive 
remedy" provided for in the Anti-Dumping Agreement. 
4. Consequently, WTO Dispute Settlement Body jurisprudence on  the implementation of 
Article 15 shows that, in practi ce, this Article has been of very little benefit to the developing 
countries .  The legal weakness of the Anti-Dumping Agreement with respect to special and 
differential treatment is obvious and must be remedied  in the current negotiations in order to fulfil the 
mandate in paragraph 28 of the Doha Ministeria l Declaration, which provides for clarifying and 
improving disciplines under the Anti-Dumping Agreem ent, while taking into account the needs of 
developing and least de veloped participants. 
5. It should also be borne in mind that the devel oping countries have been most affected by the 
application of anti-dumping measures.  Accordi ng to WTO statistics, 77% of the anti-dumping 
measures adopted between 1995 and 2008  were applied to these countries. 
6. The latest draft texts submitted by the Chai rman (TN/RL/W/236 and TN/RL/W/254) do not 
record any concrete progress in this area. 
7. This proposal contains various essential elemen ts which, according to the proponents, should 
be incorporated in the Agreement on Implementa tion of Article VI of the GATT 1994 in order to 
make special and differential treatment  operational, in addition to those set forth in the proposal by the 
African and ACP Groups on the initiation of the i nvestigation, the application of anti-dumping 
measures, and technical assistance (document TN/RL/GEN/154). 
8. Special account has been taken of paragra ph 12 of the Doha Ministerial Declaration, 
Decision WT/MIN(01)/17 and document JOB(01)/152/Rev.1. 
II. ELEMENTS OF THE PROPOSAL 
2.1 Price undertakings 
 
9. Many authorities in developed country Members set requirements that prevent the offer and 
acceptance of price undertakings, while these can be  a means for exporting enterprises in developing 
countries to avoid incurring greater costs during the investigation procedure and risking the loss of markets for their exports. 
10. As it is not binding, Article 8 ( Price Undertakings ) is not sufficient to take into special 
consideration the issue of the developing countries.  Nor does the new wording of paragraph 8.2 proposed in the Chairman's text (T N/RL/W/236) make it possible for the developing 
countries to offer a price undertaking at any stage in the proceedings and for investigating authorities 
in the developed countries to take such an undert aking into account in a constructive way so as to 
avoid undermining the developing countries' goals of economic development and social balance. 
2.2 Lesser duty rule 
 11. One of the issues on which there is still a wide divergence of opinion in the negotiations is 
that of whether or not the application of a lesser duty should be made mandatory under 
Article 9 ( Imposition and Collection of Anti-Dumping Duties ).  Mandatory application for the 
developing countries would, however, be a concrete  and effective way of addressing the needs of 
these countries.  TN/RL/GEN/180 
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  12. Previous proposals in documents TN/RL/ GEN/32 and TN/RL/GEN/43 have extensively 
addressed the need to establish the lesser duty as a ma ndatory rule - one of the reasons, among others, 
being that the lesser duty would, inter alia , make it possible not to protect the injured domestic 
industry of the importing Member more than what is adequate.  Where the exporting Member is a 
developing country, it is even more important th at the importing Member's injured domestic industry 
not receive greater protection than necessary, to the detriment of the exporter and its economic 
development goals.  It is therefore essential that ma ndatory use of the lesser duty be incorporated in 
the provisions relating to special and differential treatment. 
2.3 Automatic lapse of anti-dumping duties 
 13. The current wording of Article 11 ( Duration and Review of Anti-Dumping Duties and 
Price Undertakings ) allows for protracted application of anti-dumping measures, to the detriment of 
the developing countries.  Negotiations on this Artic le as well have not yet succeeded in bridging the 
gaps between divergent positions on whether or not the measures s hould be terminated automatically 
after a specified period. 
14. Nonetheless, special flexibilities in this area must be provided for the developing countries, 
given the lasting impact of an anti-dumping meas ure on their economic deve lopment goals and the 
gradual increase in their contribution to world trade.   Moreover, sunset review proceedings are too 
burdensome for these countries and the investigati ng authorities enjoy considerable discretion in 
conducting such proceedings, thus detracting from th e predictability of the provision in the current 
Agreement.  For the developing countries in par ticular, it is therefore necessary that anti-dumping 
duties should lapse automatically after the initial five-year period of application. 
2.4 De minimis  margin of dumping and negligible volume of imports 
 
15. The margin of dumping and the volume of imports considered to be negligible, as currently defined in Article 5.8 ( Initiation and Subsequent Investigation ), need to be increased for the 
developing countries.  The de minimis  margin of dumping should be raised from 2%, as currently laid 
down in the Agreement, to 5% up on the initiation of investigation proceedings as well as in potential 
reviews of proceedings under way, whilst the ne gligible volume of imports from a developing 
country Member should be 5% rather than not less than 3% as currently established in the Agreement. 
 
III. PROPOSED NEW TEXT 
Article15 
 
Developing Country Members 
 
15.1 When considering the application of anti- dumping measures, Members shall give special 
regard to the impact on the economy of the developi ng country Member concerned, in particular on 
its trade and economic  development. 
 
15.2 Before deciding on the application of  anti-dumping measures to a developing 
country Member, the Members' investigating authoriti es shall hold consultations to discuss proposed 
price undertakings. 
 
15.2.1 Any definitive anti-dumping duty shall be term inated within not more than five years from its 
imposition on products originating or ex ported from a developing country Member. 
 
15.2.2 An investigation concerning products originat ing in or exported from  a developing country 
Member shall be terminated immediately in cases where the authorities determine that the margin of TN/RL/GEN/180 
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  dumping, expressed as a percentage of the export price,  is less than 5% or that the volume of dumped 
imports accounts for less than 5% of imports of the like product in the importing Member, and that 
developing country Members whose share is less than 5% do not collectively account for more than 9% of total imports of the like product in the importing Member. 
 
15.2.3 Where the authorities concern ed in a developing country Member deem it necessary to apply 
provisional measures to prevent injury from occurri ng during the period of investigation, the Member 
concerned may apply such measu res once the investigation has been initiated pursuant to the 
provisions of Article 5 and prov ided that a preliminary affirma tive determination of dumping and 
consequent injury to a domes tic industry has been made. 
 
15.2.4 When deciding to apply an anti-dumping measur e to products originati ng in or exported from 
a developing country Member, Members' investigatin g authorities shall apply the lesser duty rule. 
 
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