TN/RL/W/262  
 
19 October 2015  
(15-5492)  Page: 1/7  
Negotiating Group on Rules  Original: English  
 
 TRANSPARENCY IN ANTI-DUMPING AND COUNTERVAILING DUTY  
PROCEEDINGS: THE ISSUE OF CONFIDENTIALITY 
PAPER FROM THE RUSSIAN FEDERATION 
The following communication, dated 16 October 2015, is being circulated at the request of the 
Delegation of the Russian Federation.  
_______________ 
  
1  INTRODUCTION 
[We] welcome the momentum raised by the respective proposals by the Friends of Anti-Dumping 
Negotiations group and the European Union as rega rds the topic of enhancing the transparency of 
anti-dumping proceedings (TN/RL/W/256, TN/RL/W/257). [We] share the view that ensuring 
compliance with Article 6.5 of the Agreement on Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994 (Anti-Du mping Agreement) and Article 12.4 of the 
Agreement on Subsidies and Countervailing Measures (SCM Agreement) lies in a balance between, 
on the one hand, the need to protect confidential information and, on the other hand, the due 
process obligations - that is, ensuring transparency in reaching decisions, and providing a timely opportunity for interested parties to access the information contained in non-confidential summaries in order to have an adequate opportunity to defend their interests. 
 
Reiterating the concerns voiced by other Members, our belief is that a potential modification of the relevant provisions of the Anti-Dumping Agreement and the SCM Agreement should not only 
enhance transparency but also ensure predictability in anti-dumping proceedings for the parties to 
the investigation as well as for the investigating authorities.  
I n  t h i s  r e s p e c t ,  w e  h a v e  i d e n t i f i e d  a  n u m b e r  o f  issues in the interpretation of the respective 
Agreements where the aims of enhancing transpar ency and ensuring protection of confidential 
information are in a potential conflict. Those include:  
a. non-confidential presentation of information by interested parties to investigating 
authorities (Articles 6.5.1. of the Anti -Dumping Agreement and 12.4.1. of the 
SCM Agreement), 
b. public notice of preliminary and final determinations (Articles 12.2 of the 
Anti-Dumping Agreement and 22.3 of the SCM Agreement), 
c. disclosure of essential facts (Articles 6.9 of the Anti-Dumping Agreement and 12.8 of the 
SCM Agreement). 
When solving these tasks investigating authorities routinely take numerous decisions, which imply 
a great deal of responsibility for the consequences. It is desirable that investigating authorities in all Members adhere to similar standards and use similar approaches when it comes to tackling the 
issues listed above. In our view, this will help strengthen the rules that underpin the multilateral 
trading system.  
In this paper we would like to concentrate on th e issue of the non-confidential presentation of 
information by interested parties to investigating authorities. TN/RL/W/262 
 
- 2 - 
 
  2  RELEVANT PROVISIONS 
Articles 6.5 of the Anti-Dumping Agreemen t and 12.4 of the SCM Agreement provide: 
 
N.N Any information which is by nature confidential (for example, because its 
disclosure would be of significant competitive advantage to a competitor or because 
its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information), or 
which is provided on a confidential basis by parties to an investigation shall, upon 
good cause shown, be treated as such by the authorities. Such information shall not be disclosed without specific permission of the party submitting it. 
N.N.1 The authorities shall require [interested Members or] interested parties 
providing confidential information to furnish non-confidential summaries thereof. 
These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional 
circumstances, such [Members or] parties may indicate that such information is not 
susceptible of summary. In such exceptio nal circumstances, a statement of the 
reasons why summarization is not possible must be provided.
1 
3  DESCRIPTION OF THE PROBLEM 
Neither the Anti-Dumping Agreement nor the SCM Agreement provides any guidance as to the 
methods that should be used when preparing non-confidential summaries of confidential information. 
 
Members may specify a methodology which in thei r view will ensure adequate non-confidential 
summarization, but as the Panel in China – Autos  stated "this does not guarantee that such 
summaries will withstand a challenge in WTO dispute proceedings".
2 Accordingly, that Panel saw 
"no basis on which to conclude that any one method is either necessarily appropriate or necessarily insufficient to allow for an adequate non-confidential summary".
3 
 
Certain interpretations have the potential of making it more difficult for investigating authorities to ensure the required level of transparency in investigations, considering their obligations under Articles 6.5.1 of the Anti-Dumping Agreement an d 12.4.1 of the SCM Agreement. In addition, 
these interpretations may have implications for interested parties in the investigation when they 
work with sensitive information.   
Below we present an overview of the recent interpretations by the panels and the Appellate Body 
that may, in our view, have systemic importance.  
4  OVERVIEW OF THE WTO JURISPRUDENCE 
Before the EC – Fasteners  dispute issues raised by complainants generally did not go beyond the 
procedural aspects of compliance with the requiremen ts of Article 6.5. Previous disputes concerned 
the general meaning of Article 6.5 ("good cause", et c.), while the latest rulings of the panels and 
the Appellate Body include a more explicit evaluation of the obligations contained in Article 6.5.  
 We have observed that the recent jurisprudence touched upon the interpretation of the following 
elements of Article 6.5 of the Anti-Dumping Agreement: 
 
a. types of information that may be treated as confidential, 
b. "good cause" requirement,  
c. obligation of interested parties to furnish non-confidential summaries of confidential 
information and the degree of detail required thereof, 
                                               
1 Article 12.4.1 of the SCM Agreement includes the text in square brackets, Article 6.5.1 of the 
Anti-Dumping Agreement does not. 
2 Panel Report, China – Autos , para 7.34, footnote 90. 
3 Ibid. TN/RL/W/262 
 
- 3 - 
 
  d. requirement to identify exceptional circumstances when a non-confidential summary 
cannot be provided, and to submit a statemen t of reasons explaining why summarization 
was not possible. 
A. Types of confidential information 
 
Article 6.5 of the Anti-Dumping Agreement distin guishes two types of information that can be 
treated as confidential by the investigating authority – "information submitted in confidence" and 
"information which is by nature confidential". 
 In this respect, the Appellate Body in EC – Fasteners  clarified that the information that is "by 
nature confidential" represents information that is commercially sensitive and is "not typically 
disclosed in the normal course of business, and which would likely be regularly treated as 
confidential in anti-dumping investigations".
4 As regards the information that is "provided on a 
confidential basis", it "is not necessarily confidential by reason of its content, but rather, 
confidentiality arises from the circumstances in which it is provided to the authorities."5  
 B. "Good cause" requirement 
 
Article 6.5 of the Anti-Dumping Agreement and Article 12.4 of the SCM Agreement oblige investigating authorities to treat information provided by parties to an investigation as confidential only "upon good cause shown".  
 
In EC – Fasteners  the Appellate Body commented on the application of the "good cause" 
requirement. More specifically, "the "good cause" alleged must constitute a "reason sufficient to 
justify the withholding of information from both the public and from the other parties interested in 
the investigation, who would otherwise have a right to view this information under Article 6 of the Anti-Dumping Agreement."
6 
 
The Appellate Body Report emphasises that the "good cause must demonstrate the risk of a potential consequence, the avoidance of which is important enough to warrant the nondisclosure of the information."
7 
 
At the same time the Appellate Body noted that  the examples of good cause are provided in 
Article 6.5, namely, when the submitter of the conf idential information indicates that the disclosure 
of such information "would be of significant competitive advantage to a competitor" or "would have 
a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information". Ex perience shows that these statements could be 
treated as "good cause" and should be sufficien t to justify the confidential treatment of the 
information provided by the interested parties. However, in the view of the Appellate Body in EC - Fasteners  these examples are illustrative and "a wide range of other reasons could constitute 
"good cause" justifying the treatment of information as confidential under Article 6.5".
8 
 
C. Non-confidential summaries  
Article 6.5.1 of the Anti-Dumping Agreement an d Article 12.4.1 of the SCM Agreement stipulate 
that investigating authorities "shall require [interested Members or] interested parties providing confidential information to furnish non-confidential summaries thereof". The second sentence 
refers to the quality of those summaries by saying that they "shall be in sufficient detail to permit 
a reasonable understanding of the substance of the information submitted in confidence".  Panels seem to have taken on the task to identify whether certain information provided in the 
non-confidential summary is sufficient for the purposes of reasonable understanding of information 
submitted in confidence and whether the investigat ing authority in question has therefore complied 
with an obligation to require those summaries. The panels' conclusions give certain guidance with 
regard to the content of non-confidential summaries that the agreements themselves lack. These 
                                               
4 Panel Report, EC – Fasteners , para. 536. 
5 Ibid. 
6 Appellate Body Report, EC – Fasteners , para. 537. 
7 Ibid. 
8 Appellate Body Report, EU – Fasteners , para. 538. TN/RL/W/262 
 
- 4 - 
 
  interpretations are of critical importance, as they clarify the scope of obligations under Article 6.5. 
However, they raise further systemic questions.   In EU – Fasteners  the Appellate Body concluded that "the sufficiency of the summary provided will 
[…] depend on the confidential information at issue, but it must permit a reasonable understanding 
of the substance of the information withheld in order to allow the other parties to the investigation an opportunity to respond and defend their interests".
9 
 
In China – GOES  the Panel further stated that "it is necessary to provide a summary of the 
substance of the confidential information and not merely to assert the conclusions that may be drawn from it."
10 
 
In China – Autos  the Panel concluded that year-on-year percentage changes generally suffice to 
"permit a reasonable understanding of the substanc e of the information submitted in confidence", 
as required by Articles 6.5.1 and 12.4.1, even wi thout knowing the significance, in absolute terms, 
of the change.11 As regards certain elements of the investigating authority's reasoning – namely, 
partially unlabelled trend lines and text, - the Panel concludes that they are not, on their own (in 
the absence of additional information, such as that provided in other summaries by the tables 
showing percentage changes), sufficient to permit a reasonable understanding of the substance of 
the redacted information.12  
 
Curiously enough, Panels do not demonstrate a systemic approach to interpreting these provisions. 
 For instance, in China – Broiler Products  the Panel concluded that the absence of baseline 
information for the tables or graphs actually prevents the interested parties from obtaining a 
reasonable understanding of the substance of confidential information.
13 The Panel in China – 
Autos , faced with a similar situation, disagreed with the position of the Panel in China – Broiler 
Products .14 
 This example signals that conflicting interpretati ons may exist as regards the content and format 
of non-confidential summaries of confidential information that could give "a reasonable 
understanding of the substance of the information submitted in confidence" 
 In our view, diverging views of th e panels on very similar issues may make it difficult for Members 
to understand the substance of their obligations – in  this case, the required content and format of 
the non-confidential summaries that would be consistent with Anti-Dumping Agreement and SCM Agreement.  
 
D. Exceptional circumstances and statement of reasons  Article 6.5.1 of the Anti-Dumping Agreement recogn ises an "exceptional circumstances" exemption 
in cases when the information at issue is not susceptible of summary. Parties providing confidential 
information must identify exceptional circumstance s and submit a statement of reasons explaining 
why summarization is not possible. 
 
In certain cases, Members invoked "exceptional circumstances" identified by interested parties as a defence justifying the exemption from the requ irement to provide non-confidential summaries. 
However, those attempts were not successful.
15 Nevertheless, WTO jurisprudence so far has not 
specified what reasons could adequately prove the existence "exceptional circumstances".   We find some helpful interpretations with regard to "exceptional circumstances" in the Appellate 
Body Report on EC-Fasteners : 
                                               
9 Appellate Body Report, EU – Fasteners , para. 542. 
10 Panel Report, China – GOES , para. 7.205. 
11 Panel Report, China – Autos , para 7.34. 
12 Panel Report, China – Autos , paras. 7.46, 7.52. 
13 Panel Report, China – Broiler Products , para. 7.63. 
14 In this regard, we note that the footnote 89 of the Panel Report on China – Autos  stated that “insofar 
as the panel in China – Broiler Products  considered that the absence of a baseline figure deprived interested 
parties of a reasonable understanding of the magnitude of  changes in a manner inconsistent with Articles 6.5.1 
and 12.4.1, we respectfully disagr ee with that panel's reasoning”. 
15 See, e.g. Mexico – Olive Oil , para. 7.101. TN/RL/W/262 
 
- 5 - 
 
  I t  i s  n o t  e n o u g h  f o r  a  p a r t y  s i m p l y  t o  claim that providing a summary would be 
burdensome or costly. Summarization of information will not be possible where no alternative method of presenting that information can be developed that would not, either necessarily disclose the sensitive information, or necessarily fail to provide a 
sufficient level of detail to permit a reasonable understanding of the substance of the 
information submitted in confidence.
16 
5  CONCLUSION 
The analysis of recent DSB rulings in trade reme dy cases demonstrates that adjudicators have 
shifted from the assessment of "technical" issues  (i.e. "good cause", whether non-confidential 
summary is provided for the information submitted in confidence, reasons for exceptional circumstances, etc.) to more substantive issues (i.e. adequacy of non-confidential summaries and 
whether their content and format permits a reas onable understanding of the substance of the 
confidential information at issue etc.).  
The framework of Article 6.5 of the Anti-Dumpi ng Agreement and 12.4 of the SCM Agreement can 
be interpreted – and is being interpreted – in such a way that substantially changes the understanding as regards adequacy and sufficiency of the non-confidential summaries for the 
purpose of compliance with the relevant requirements. 
 Hence, it may be necessary to develop a common understanding among the Members of the content and format of the non-confidential summary that would permit a reasonable 
understanding of the substance of information submitted in confidence in anti-dumping 
investigations.   
We welcome the discussion of the issue of non-conf idential presentation of information in anti-
dumping and countervailing duty investigations, as well as the proposals of the Members on other points raised in this paper.  
 
 Annex  
Guidelines for the Application of Articl e 6.5.1 of the Anti-Dumping Agreement 
 
 
This proposal was prepared in order to serve as a basis for a guideline text assisting parties to 
trade remedy investigations when furnishing confidential information and non-confidential summaries thereof. 
 
The proposal was drafted with a view to reflect approaches and best practices already used by WTO Members in their implementation of the An ti-Dumping Agreement and the SCM Agreement, 
combining it with interpretations that were multilaterally recognized by Members at the level of the 
Dispute Settlement Body. 
 A. Types of confidential information 
 
The following types of information can be treated as confidential:  
- information which is by nature confidential, 
- information which is expressly protected from public disclosure by domestic legislation, 
- business or trade secrets, 
- factual data: 
 production costs, 
 terms of sales, 
 prices of individual transactions (excluding components of prices, dates and product 
description), 
 name of particular customers, distributors, suppliers (excluding destination of sales) or 
name of a person from whom the co nfidential information was received, 
 amount of dumping on individual sales or amount of benefit received by a person, 
                                               
16 Appellate Body Report, EC – Fasteners, para. 543. TN/RL/W/262 
 
- 6 - 
 
  - any other information the disclosure of which would be of significant competitive advantage 
to a competitor or would cause a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information. 
 
The following types of information ca nnot be treated as confidential: 
 
- information that is publicly available, 
- aggregated information (e.g. sales, production etc.) pertaining collectively to more than two 
companies which submitted confidential information, unless, as a rule, these two companies account for more than 80 percent of the data in question or unless one company accounts for more than 60 percent of the data in question, 
- publicly available laws, regulations, decrees or other official documents pertaining to a 
Member's domestic legal framework, 
- factual information that is not designated as confidential information, 
- written arguments relating to the investigation that are not designated as confidential 
information. 
 
B. "Good cause" requirement 
 Information pertaining to the types enumerated in  Part A. can be treated as confidential by 
investigating authorities only upon a good cause shown in writing. 
 
The statement of the "good cause" should be pr ovided by the interested party along with the 
information for which it requests confidential treatment and should refer to all items that should be 
treated as confidential by the investigating authority. 
 The "good cause" requirement can be fulfill ed, when the disclosure of information: 
 
 would be of significant competitive advantage to a competitor, 
 would have a significantly adverse effect up on a person supplying the information or 
upon a person from whom that person acquired the information, 
 would cause substantial harm to the competitive position of the submitter, 
 could provide specific business information to the competitor that could be replicated, 
to the detriment of the submitter's competitive position. 
 
[Guidelines can include an illustrative list of examples of statements of good cause]  
C. Non-confidential summaries 
 
1. Documents containing non-confidential summaries should be created from documents 
containing the information for which confidential treatment is requested. As closely as 
possible, they should look like the original confidential documents. 
 2. Confidential information should be deleted from the original document item by item 
and replaced with a summary that ensures an understanding of substance of the 
information that was deleted. It is preferable to indicate where confidential information has been deleted. 
 
3. Information which in not treated as confidential should be identically displayed in a 
confidential and non-confidential version of the submitted document. 
 
4. When confidential information concerns figures (e.g. in tables), indices or year-over-
year changes in percentage terms can be used. 
 
Example of information intended to be not disclosed: 
 Volume of production: 
 
 Year 1 Year 2 Year 3 
Volume of production 20.000 tonnes 30.000 tonnes 40.000 tonnes 
 TN/RL/W/262 
 
- 7 - 
 
  Non-confidential summaries could be as follows: 
 Volume of production (index)  
 Year 1 Year 2 Year 3 
Volume of production 100 150 200 
 
or: 
 
Volume of production (Year-over-year changes in percentage terms)  
 Year 1 Year 2 Year 3 
Volume of production - +50% +33% 
 
If the confidential information is presented in tabl es, the interested party can provide trend lines or 
text summarizing the substance of data not disclosed. 
 
 When the information concerns a single number, a percentage change can be applied to it. 
 
Example of information intended to be not disclosed:  "The cost of production is 200 per tonne." 
 
Non confidential summaries could be as follows:  
"The cost of production is 220 per tonne" (+ footnote saying: "actual numbers have been 
amended by a margin of maximum + 10% to protect confidentiality").  
 When confidential information is provided in the form of the text, it could be summarised or 
certain elements could be substituted with more general terms. 
 Example:  "TRADING COMPANY told me that the prices of imports were 20% lower". 
 
Non confidential summaries  could be as follows:   
 
"[One of my customers] told me that the prices of imports were 20% lower.". 
  
__________