TN/RL/GEN/190  
 
26 June 2017  
(17-3366) Page: 1/7 
Negot iating Group on Rules  Original: English  
 
 
 FOLLOW -UP PAPER ON ENHANCIN G TRANSPARENCY AND S TRENGTHENING DUE 
PROCESS IN ANTI -DUMPING AND COUNTERV AILING PROCEEDINGS  
COMMUNICATION FROM C HINA 
The following communication, dated 23 June 2017, is being circulated at the request of the 
Delegation of China.  
 
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1  BACKGROUND  
The Proposal on Trade Remedies  (TN/RL/GEN/185) submitted by China on 21 April 2017 was 
circulated among the Members on 24 April. As the proponent, China had the opportunity at both 
the small group meeting on 11 May and the inf ormal open -ended meeting of Negotiating Group on 
Rules on 31 May to present in detail the proposal and the underlying considerations, including the 
importance and necessity of promoting negotiations on anti -dumping and countervailing rules 
under current ci rcumstances, the aims and suggestions for the following steps, as well as an 
introduction to the five aspects identified by China for further discussion.  
 
Transparency and due process in AD and CVD proceedings are vital for interested parties on both 
sides to effectively defend their rights and interests, and for investigating authorities to make fair 
and impartial determinations. Members share the common goal of enhancing transparency and 
due process.1 As transparency and due process are among the importan t and "do -able" subjects 
that have received in -depth discussions in previous negotiations with a relatively high level of 
convergence and good groundwork, and have also attracted much interest of the Members, China 
hereby submits this proposal on enhancing  transparency and strengthening due process. This 
paper has further clarified China's suggestions contained in the proposal TN/RL/GEN/185 on this 
subject, based mainly on the Chair's consolidated text of 2011 (TN/RL/W/254) with adjustments 
that, inter alia , address concerns raised by Members, particularly the developing Members, on the 
potential burden that may be caused to their investigating authorities. This paper is thus meant to 
serve as the basis for further discussion of and improvement on transparen cy and due process.2 
 
2  TRANSPARENCY AND DUE  PROCESS IN AD PROCEE DINGS  
2.1  Petitioner's standing (ADA Article 5.4)  
The addition of Article 5.4 in the Chair's consolidated text of 2011 (TN/RL/W/254) provides that 
"[f]or the purpose of this paragraph, the term 'do mestic industry' shall be interpreted as referring 
to the domestic producers as a whole of the like product, subject to the application of Article 4.1(i) 
and 4.1(ii) ." While Article 4.1 of ADA provides that " [t]he term 'domestic industry' shall be 
interpre ted as referring to the domestic producers as a whole of the like products or to those of 
them whose collective output of the products constitutes a major proportion of the total domestic 
                                                
1 Proposal on Trade Remedies  by China, TN/RL/GEN/185.  
2 China would note that many proposals on this subject have been submitted  by Members before the 
Chair's AD text of 2011. After that, some proposals have been continuously submitted by Members such as 
FANS, Russian Federation and Japan, for example, TN/RL/W/257, TN/RL/W/259, TN/RL/W/262 and 
TN/RL/W/265. We believe that these pro posals provide valuable reference for further discussions on this 
subject.  TN/RL/GEN/190  
 
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 production of those products. " The above mentioned addition explicit ly clarifies that when 
evaluating the petitioner's standing according to Article 5.4, the basis for determining the 
proportion of the support for an application by the domestic industry should be ' the domestic 
producers as a whole of the like product', rather than  'those of them whose collective output of the 
products constitutes a major proportion of the total domestic production of those products '. This 
addition is proposed to be accepted.  
 
The existing footnote 14 under ADA Article 5.4 states that " [M]em bers are aware that in the 
territory of certain Members employees of domestic producers of the like product or 
representatives of those employees may make or support an application for an investigation ". It is 
noticed that according to some Members' regula tions and practices, the representatives of 
employees of domestic producers, such as the labor unions, are entitled to applying for initiating 
an AD investigation, and the relevant investigating authority may also initiate an investigation on 
such applicat ion even when the domestic producers of the like product keep silent or even express 
opposition to the application. However, the key element of the standards for evaluating the 
petitioner's standing as stipulated in Article 5.4 is the collective output of domestic producers in 
support. Therefore, the footnote 14 needs to be further clarified that even if employees of 
domestic producers or representatives of those employees may make or support an application for 
an investigation, the collective output of dom estic producers of the like product shall still satisfy 
the requirements as set forth in Article 5.4. Additionally, this footnote should be accordingly 
moved to a place that follows the description of petitioner's standing test for it to be consistent 
with this clarification.  
 
2.2  Notice before initiation (ADA Article 5.5 and Article 6.1.3)  
Article 5.5 in the Chair's text of 2011 (TN/RL/W/254) has provided clarifications on two points. 
Firstly, the time limit for notice before initiation is clearly specified as  "no later than 15 days before 
initiating an investigation ". Secondly, in addition to notification, the full text of the written 
application shall also be provided to the government of the exporting Member concerned. Since 
these clarifications have specifi ed the notification obligations of the investigating authorities, 
guaranteed the right to know of the interested parties and reflected the practices of some 
Members, it is proposed that these amendments be accepted.3 
 
2.3  Access to information (ADA Article 6.4 , Article 6.5.1)  
Article 6.4, Article 6.4 bis, and Article 6.5.1 in the Chair's text of 2011 (TN/RL/W/254) have made 
some clarifications and improvements with regard to access to non -confidential information by 
interested parties and non -confidential summar ies, such as prompt access to all non -confidential 
information and the obligation of investigating authorities to maintain non -confidential information 
file. As these clarifications and improvements have reflected the achievements of rounds of the 
negotiat ions among Members, incorporated the practice and up -to-date developments of many 
Members, and also reflected the spirit and principles of recent DSB rulings4, we propose to accept 
them in the interest of consolidating the achievements and exploring possib le further 
improvements.5 
 
2.4  Disclosure (ADA Article 6.9)  
Article 6.9 in the Chair's text of 2011 (TN/RL/W/254) has clarified that disclosure of essential facts 
to all interested parties shall be made in the form of a written report, and specified that 
investigating authorities shall ensure sufficient time, i.e. 20 days, for interested parties to respond 
to the disclosure and shall address such responses in their final determination. Article 6.9 bis has 
further specified the content, form as well as standards on disclosures to exporters or producers in 
                                                
3 Considering that the notification delivered 15 days before initiation may cause extra burden to 
investigating authorities of some developing Members, China hereby proposes that th e notification shall, by no 
means, be later than 7 days before initiation when they have genuine difficulties.  
4 For example, see the requirements and disciplines described by the Appellate Body and Panel on the 
scope of public information, timely and suff icient access to the information and non -confidential summaries in 
EC-Fasteners (China)  (WT/DS397).  
5 It is noted that a proposal Transparency in Anti -dumping and Countervailing Duty Proceedings: the 
Issue of Confidentiality (TN/RL/W/262), submitted by Rus sian Federation in 2015, contains discussions on the 
types of confidential information, good cause and non -confidential summaries that would provide valuable 
basis for further explorations on this subject.  TN/RL/GEN/190  
 
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   greater detail. In order to improve transparency in this area with the aim of providing clearer and 
more detailed guidance, we propose to adopt Article 6.9 and Article 6.9 bis in the Chair's text of 
2011 (TN/RL/W/ 254) as the basis for further discussion.6 
 
3  TRANSPARENCY AND DUE  PROCESS IN CVD PROCE EDING7 
It is well known that the government of the exporting Member is a party responding to 
countervailing investigations, and is obliged to provide a large amount of det ailed information on 
government and national economic policies related to the alleged subsidy programs. Therefore, a 
hair-trigger initiation of countervailing proceedings may result in substantial and even 
unconscionably heavy burden on the government of t he exporting Member. China notes that in the 
current Article 11.2(iii) and Article 11.3 of the ASCM, the evidentiary standards for subsidy 
allegations are ambiguous and without clear instructions. China holds that the evidentiary 
standards should be furthe r clarified in order to improve the initiation standards and practices of 
Members, increase transparency of the process and better protect the legitimate rights of 
exporting Members. The evidence laid out by petitioners for subsidy allegations must be suff icient 
to demonstrate such basic elements of the subsidy in question as financial contribution, specificity 
and benefits. And the investigating authorities shall proceed with the initiation of the proceedings 
only with accurate and adequate evidence, so as  to satisfy the requirements of due process 
without adding to the burden on the respondent government or unnecessarily encouraging 
petitioners to make hearsay or unfounded subsidy allegations.  
                                                
6 Since the 20 -day requirement may cause extra bur den to investigating authorities of some developing 
Members, China hereby proposes that they shall ensure at least 10 days for interested parties when they have 
genuine difficulties.  
7 For discussion purposes, the draft legal language proposed in Section 2  of this document that 
improves on the current disciplines of Articles of the ADA may well be applied, with adjustment where 
appropriate, to the corresponding Articles of the ASCM. This will be further discussed in China's proposal to be 
submitted under th e subject of transposition.  TN/RL/GEN/190  
 
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 ANNEX 1  
Proposed Amendments to ADA  
 
Article 5  
 
Initiation and Subsequent Investigation  
 
5.4 An investigation shall not be initiated pursuant to paragraph 1 unless the authorities have 
determined, on the basis of an examination of the degree of support for, or opposition to, the 
application expressed1 by domestic prod ucers of the like product, that the application has been 
made by or on behalf of the domestic industry.2 The application shall be considered to have been 
made "by or on behalf of the domestic industry" if it is supported by those domestic producers 
whose c ollective output constitutes more than 50% of the total production of the like product 
produced by that portion of the domestic industry expressing either support for or opposition to 
the application. However, no investigation shall be initiated when domes tic producers expressly 
supporting the application account for less than 25% of total production of the like product 
produced by the domestic industry.3 For the purpose of this paragraph, the term "domestic 
industry" shall be interpreted as referring to th e domestic producers as a whole of the like product, 
subject to the application of Article 4.1(i) and 4.1(ii ). 
 
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1 In the case of fragmented industries involving an exceptionally large number of producers, authorities 
may determine suppor t and opposition by using statistically valid sampling techniques.  
 
2 Members are aware that in the territory of certain Members employees of domestic producers of the 
like product or representatives of those employees may make or support an application fo r an investigation 
under paragraph 1.  
 
3 Members are aware that in the territory of certain Members employees of domestic producers of the 
like product or representatives of those employees may make or support an application for an investigation 
under para graph 1. Under such circumstances, the collective output of domestic producers of the like product 
shall still satisfy the requirements in Article 5.4 . 
 
 
5.5 The authorities shall avoid, unless a decision has been made to initiate an investigation, any 
publicizing of the application for the initiation of an investigation. However, after receipt of a 
properly documented application and no later than 15 days1 before initiating  before proceeding to 
initiate  an investigation, the authorities shall notify the go vernment of the exporting Member 
concerned and shall provide it with the full text of the written application, paying due regard to the 
requirement for the protection of confidential information as provided for in paragraph 5 of 
Article  6. 
 
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1 When investigating authorities of developing Members have genuine difficulties, this shall, by no 
means, be later than 7 days . 
 TN/RL/GEN/190  
 
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   Article 6  
 
Evidence  
 
6.1.3 As soon as an investigation has been initiated, the authorities shall provide the 
full text of the written application received under paragraph 1 of Article 5 to the 
known exporters1 and to the authorities of the exporting Member  and shall 
make it available, upon request, to other interested parties involved. Due 
regard shall be paid to the requirem ent for the protection of confidential 
information, as provided for in paragraph 5.  
_________________  
 
1 It being understood that, where the number of exporters involved is particularly high, the full text of 
the written application should  may instead be p rovided only to the authorities of the exporting Member or  to 
the relevant trade association,  if any. In such cases, the authorities shall so inform the government of the 
exporting Member . 
 
6.4 The authorities shall whenever practicable  provide timely  opportunities for all interested 
parties to see promptly  all information that is relevant to the presentation of their cases, that is  
non t confidential information  as defined in paragraph 5, and  that is used by  submitted to or 
obtained by  the authorities in a n anti -dumping investigation, and to prepare presentations on the 
basis of this information.  
 
6.4bis The authorities shall maintain a file containing all non -confidential documents submitted to 
or obtained by the authorities in an anti -dumping proceeding, including non -confidential 
summaries of confidential documents and any explanations provided pursuant to Article 6.5.1 as to 
why summarization is not possible, and shall allow interested parties to review and copy the 
documents in that file upon request. W here the proceeding is ongoing or is subject to judicial, 
arbitral or administrative review, access to this file shall be provided within five working days of a 
request. The non -confidential file shall be kept in an organized manner, and a complete index o f all 
documents in the possession of the authorities, including confidential documents, shall be included 
therein. Each file shall include all public notices related to that proceeding issued pursuant to 
Article 12, as well as separate reports issued pursu ant to footnote 37 to that Article. Each file shall 
be maintained so long as the measure to which it relates remains in force. The authorities shall 
provide for the copying of documents in the non -confidential file at the reasonable expense of the 
person s o requesting, or shall allow, subject to reasonable safeguards, that person to remove the 
documents for copying elsewhere .1 
 
_________________  
 
1 The requirements of this paragraph may be met by making such non -confidential documents and 
indices available via the internet . 
 
6.5.1 The authorities shall require interested parties providing confidential information 
to furnish non -confidential versions of the document containing the confidential 
information within three working days of submitting the original 
document. summaries  thereof . The non -confidential version shall be identical to 
the version containing the confidential information, except that the confidential 
information shall be removed and replaced by a summary of that information  
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 parties providing confidential information  may 
indicate that such information is not susceptible o f summary. In such 
exceptional circumstances, a statement of the reasons why summarization is 
not possible must be provided.  
 TN/RL/GEN/190  
 
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 6.9 The authorities shall, before a final determination is made, inform provide  all interested 
parties with a written report  of the essential facts under consideration which they intend will  form 
the basis for the decision whether to apply definitive measures. Interested parties shall have 
20 days1 to respond to this report and the authorities shall address such responses in their fi nal 
determination .2 Such disclosure should take place in sufficient time for the parties to defend their 
interests . 
_________________  
 
1 When investigating authorities of developing Members have genuine difficulties, this shall, by no 
means, be less than 1 0 days . 
 
2 Where no preliminary determination has been made, this disclosure shall be made within sufficient 
time to allow an exporter to offer an undertaking in response . 
 
6.9bis The authorities shall, normally within seven days after giving public notice  of a final 
determination under Article 12.2, disclose to each exporter or producer for whom an individual 
rate of duty has been determined the calculations used to determine the margin of dumping for 
that exporter or producer.1 The authorities shall provi de to the exporter or producer the 
calculations, either in electronic format (such as a computer programme or spreadsheet) or in 
another appropriate medium, a detailed explanation of the information used, the sources of that 
information and any adjustments  made to the information prior to its use in the calculations. The 
disclosure and explanation shall be in such a form as to permit the reproduction of the 
calculations . 
 
_________________  
 
1 This requirement is satisfied where the authorities make such a d isclosure pursuant to Article 6.9 
before the final determination is made . 
 TN/RL/GEN/190  
 
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   ANNEX 2  
 
Proposed Amendments to ASCM  
 
Article 11  
 
Initiation and Subsequent Investigation  
 
11.2 An application under paragraph 1 shall include sufficient evidence of the existence of (a) a 
subsidy and, if possible, its amount, (b) injury within the meaning of Article VI of GATT 1994 as 
interpreted by this Agreement, and (c) a causal link between the subsidized imports and the 
alleged injury. Simple assertion, unsubstantiated by rele vant evidence, cannot be considered 
sufficient to meet the requirements of this paragraph. The application shall contain such 
information as is reasonably available to the applicant on the following:  
 
(iii) evidence with regard to the existence of elements  including financial 
contribution, benefit and specificity  existence, amount and nature  of the subsidy 
in question;  
 
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