TN/RL/W/259  
 
15 July 2015  
(15-3643)  Page: 1/2  
Negotiating Group on Rules  Original: English  
 
 ANTI-DUMPING NEGOTIATIONS 
COMMUNICATION FROM CHILE; COSTA RICA ; HONG KONG, CHINA; ISRAEL; JAPAN; 
KOREA, REP. OF; NORWAY; SINGAPORE; SWITZERLAND; AND THE SEPARATE  
CUSTOMS TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU 
The following communication, dated 14 July 2015, is being circulated at the request of the 
Delegations of Chile; Costa Rica; Hong Kong, China; Israel; Japan; Korea, Rep. of; Norway; 
Singapore; Switzerland; and the Separate Cust oms Territory of Taiwan, Penghu, Kinmen and 
Matsu.  
_______________ 
 
 1  INTRODUCTION 
The AD negotiations as mandated by the Ministerial Declaration of the Doha Ministerial Conference 
are aimed at clarifying and improving disciplines under the Anti-Dumping Agreement. The Friends of Anti-Dumping Negotiations (FANs) Group and individual members have submitted more than 
one hundred working documents and proposals. At the same time, as major demandeurs in the AD 
negotiations, we recognize that elements to be considered in the work program should be recalibrated as appropriate.  
We consider that transparency and due process shou ld constitute deliverables in the AD part of the 
work program. From this perspective, the previous communication (TN/RL/W/257) has already presented elements of transparency and due proces s in the AD area. Without transparency and the 
observance of due process, interested parties cannot make effective defense of their interests and 
investigating authorities cannot make well-founded determinations. Improvements to transparency and due process would reduce the number of WTO dispute settlement cases, and would benefit 
both interested parties and investigating authorities.  
 Besides the elements presented in the TN/RL/W/2 57 document, in view of the current situation 
related to the use of AD measures as discussed in "Background" below, the RNG should also 
consider enhancing predictability of the AD measures in order to reduce the burden on 
investigating authorities, to prevent unintended distortions to international trade, and to protect the legitimate interests of parties involved in international trade. The issues enhancing 
predictability would also form deliverables in the work program as appropriate. As we stated in the 
TN/RL/256 document, we seek to identify and prioritise the issues considering both "importance" and "doability". This paper intends to elaborate on the elements to be considered. 
 
2  BACKGROUND 
The predictability of the duties imposed by WTO Members at their borders is the key element for 
the legitimate development of international trad e free of distortions. The Appellate Body thus 
stated in EC – Computer Equipment  that "the security and predictability of 'the reciprocal and 
mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade' is an object and purpose of the WTO Agreement , generally, as well as of the 
GATT 1994."
1  
                                               
1 Appellate Body Report, European Communities – Customs Classification of Certain Computer 
Equipment , WT/DS62/AB/R-WT/DS67/AB/R-WT/DS68/AB/R, adopted 22 June 1998, DSR 1998:V, 1851, 
para. 82. TN/RL/W/259 
 
- 2 - 
 
   
Predictability is likewise essential with regard to AD proceedings and measures. On the one hand, Article VI:1 of the GATT provides that injuriou s dumping is to be condemned, and allows the 
importing Member to impose AD duties to counteract such injurious dumping. On the other, the AD 
Agreement seeks to ensure, via the stipulation of procedures it prescribes, that normal trade is not 
negatively affected by inappropriate AD proceedings and measures. Companies should not be punished ("condemned") for normal business behaviour. An exporter should be able to predict 
what kind of pricing behaviour may give rise to initiation of an AD proceeding and the imposition of 
AD duties. AD measures should also be limited to the extent that necessary to remove injury to the domestic industry. For example, Article 11.1 of  the AD Agreement further clarifies that "[a]n 
anti-dumping duty shall remain in force only as long as and to the extent necessary to counteract 
dumping which is causing injury."  
 WTO Members have attempted to incorporate these rules into their domestic AD regulatory 
regimes. However, as WTO Members have decreased tariff barriers and trade has increased, AD 
proceedings and measures have increased. Moreover, AD measures are increasingly being applied by Members that are relatively new users in differe nt procedures and differe nt levels of standards.
2 
As a result, parties that engage in international trade face increasing unpredictability. To provide 
more predictability, clearer rules in the AD Agreement are needed to ensure that all Members apply common minimum standards in AD proceedings.   
The need for clearer rules is evidenced by the large volume of requests for dispute settlement 
consultations regarding individual Members' AD legislation and proceedings. We already have seen approximately 100 requests for consultation on AD proceedings, 30 of which have been made 
since 2010; and nearly 50 panel reports have been issued pursuant to such requests in the last 
20 years.
3 After two decades of experience with the application of the current AD Agreement, it 
has become increasingly more evident that rules need improvement. 
 
3  ELEMENTS TO BE CONSIDERED 
With such background in mind, we consider that the following issues, in addition to transparency 
and due process, deserve clarification. The AD Ag reement may be improved by setting forth more 
detailed rules on these issues. Improvements should be considered, in particular: 
 
- To clarify the factors and conditions in determining how long exporters are to be 
subject to an AD duty. AD measures should not be imposed longer than necessary to 
remove the effects of injury. 
- To clarify opportunities to participate in the AD proceedings for parties in the domestic 
and international supply chain which would directly or indirectly be affected by AD 
duty.  
- To set forth common rules on the maximum level that AD duties may be imposed.  
- To set forth common rules on the minimum conditions for conducting investigations, 
considering that some price differences and fluctuations are a normal part of trade, 
and that small quantities of imports compared to domestic market do not have a significant adverse impact on the domestic industry. 
 
In light of the importance of predictability of the AD duties and the related issues described in this 
paper, we remain ready to hear other Members' views and to engage constructively in discussions 
with the Chairman and all interested Members. We may present further views, on either an 
individual or a collective basis, considering the de velopment of negotiations both in rules and the 
other areas.   
__________  
 
                                               
2 In 1995, there were 120 new investigations conducted by 17 countries, of which only 9 countries 
initiated more than 3 investigations. Indeed the three top users accounted for 64 or half of the new investigations. Since then the user community has dive rsified with 25 additional users, and in 2013, 161 new 
investigations were conducted by 24 countries, of which 16 countries initiated more than 3 investigations. 
3 See the WTO webpage on "Disputes by agreement", at 
https://www.wto.org/english/tr atop_e/dispu_e/dispu_agree ments_index_e.htm?id=A6#.