G/ADP/Q2/CAN/1  
 
20 March 2013  
(13-1527)  Page: 1/2  
Committee on Anti-Dumping Practices  Original: English  
 
 ARTICLE 16.4 OF THE AGREEMENT 
SEMI-ANNUAL REPORT OF AN TI-DUMPING DUTY ACTIONS 
QUESTION POSED BY THE SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU,  
KINMEN AND MATSU REGARDING THE SEMI-ANNUAL REPORT FROM CANADA1 
 
The following communication, dated 19 March 2013, is being circulated at the request of the 
Delegation of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu. 
 
_______________ 
 
 
With regard to Canada’s anti-dumping investigation involving carbon steel welded pipes originating 
in the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, the Canada Board 
Services Agency (CBSA) completed its final de termination of dumping on 9 November, 2012. In 
this determination, we note that two of our su bject companies were determined to have margins 
of dumping of less than 2% respectively. However,  the CBSA further calculated an overall country 
margin of dumping of 8.9%, which still subjects these two companies to the investigation and the subsequent anti-dumping measure. The CBSA claims that all of its investigation procedures comply 
with the Special Import Measures Act (SIMA), Canada’s domestic legislation dealing with 
anti-dumping, which stipulates that terminations resulting from insignificant margins of dumping (less than 2%) apply only when the margins of dumping are for a country as a whole, not for 
individual foreign exporters or producers. 
 Article 5.8 of the WTO Anti-dumping Agreement (AD Agreement) stipulates that “There shall be 
immediate termination in cases where the authorities determine that the margin of dumping is  
de minimis ,” and “The margin of dumping shall be considered to be de minimis if this margin is 
less than 2 per cent, expressed as a percentage of the export price.” Although the text of 
Article 5.8 is mute as to whether the term “margin of dumping” refers to an exporter-specific or to 
a country-wide margin of dumping, from studying relevant texts and considering the general 
context of the AD Agreement, it is evident that th is term refers to the margin of an individual 
exporter or producer rather than to a country -wide margin of dumping. For example, both 
Articles 6.10 and 9.4 of the AD Agreement provid e for the calculation of individual margins of 
dumping, and do not envisage the calculation of  a country-wide margin. Moreover, the number of 
references to the "exporter or producer under investigation" in Article 2 (e.g., in 2.2.1.1, 2.2.2, 
and 2.3 of the AD Agreement) clearly indicates th at Article 2 of the AD Agreement concerns the 
determination of an individual margin of dumping for an exporter or producer under investigation. In other words, whenever the Agreement refers to the determination of a margin of dumping, it is referring to the margin of the individual exporter. 
 
Additionally, several Panel and Appellate Body deci sions have made it quite clear that the margin 
of dumping referred to in Article 5.8 is the indivi dual dumping margin of an exporter. For example, 
in US – DRAMs , the Panel found that “in the context of Article 5.8, the function of the de minimis  
test is to determine whether or not an exporter is subject to an anti-dumping order...”
2; In Mexico 
– Beef and Rice , the Appellate Body held that “Article 5. 8 of the Anti-Dumping Agreement requires 
an investigating authority to terminate the investigation ‘in respect of’ an exporter found not to 
                                               
1 G/ADP/N/237/CAN. 
2 Panel Report, US – DRAMs , para. 6.90. G/ADP/Q2/CAN/1 
 
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  have a margin above de minimis , and that the exporter consequently must be excluded from the 
definitive anti-dumping measure”.3 
 Therefore, on the basis of the general concep t of ‘margin of dumping’ as found in the 
AD Agreement, and the findings of several relevant Panel and Appellate Body decisions, it can 
reasonably be concluded that the margin of dumping in Article 5.8 refers to the individual margin of dumping of an exporter or producer, not to a country-wide margin of dumping. Thus, Article 5.8 
requires the immediate termination of the investigation in respect of an exporter whose individual 
margin of dumping is determined as being de minimis,  and that exporter must be excluded from 
the scope of the subsequent Anti-dumping order.  
Question: 
 In light of the above, could Canada please explain how certain aspects of its domestic legislation 
and practices comply with its obligations under Article 5.8 of the AD Agreement?  
  
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3 Appellate Body Report, Mexico-Beef and Rice , para. 305.