WORLD TRADE  
ORGANIZATION  TN/RL/GEN/51 
1 July 2005 
 (05-2837) 
Negotiating Group on Rules Original:   English 
  
 
PROPOSAL ON CUMULATION 
 
Communication from Brazil, Switzerland, Thailand
 
  
 The following communication, dated 30 June 2005,  is being circulated at the request of the 
Delegations of Brazil, Switzerland and Thailand. 
  The submitting delegations have requested that this paper, which was submitted to the Rules 
Negotiating Group as an informal document (JOB(05)/ 134), also be circulated as a formal document. 
 
_______________ 
 
Introduction 
1. Based on their own experience, the co-sponsors ha ve identified some deficiencies in the rule on 
cumulation  contained in the Antidumping Agreement (ADA).  
2. This rule, set forth in Article 3.3 of th e ADA, plays an important role for any injury 
determination. Added in the Urugua y Round text as a last-minute change by a simple “copy and 
paste” from Article 15.3 of the Subsidies and Countervailing Measures Agreement (ASCM), this provision lacks clarity.  
3. The Appellate Body has analyzed some of th e divergent interpretations about the cumulation 
rule in EC ─ Pipe Fittings . We consider that the language of  such provision would benefit from 
clarification, based on the Appellate Body ruling.  
Jurisprudence 
4. In EC─ Pipe Fittings , the Appellate Body ruled that “[a] cumulative analysis logically is 
premised on a recognition that the domestic industry faces the impact of the ‘dumped imports’ as a 
whole and that it may be injured by the total impact of the dumped imports, even though those 
imports originate from various countries. […] [T]he negotiators appear to have recognized that a 
domestic industry confronted with  dumped imports originating from several countries may be injured 
by the cumulated effects of those imports, and that  those effects may not be adequately taken into 
account in a country-specific analysis of the injurious effects of dumped imports.”
1  
5. According to the Appellate Body, the purpose of  an injury determination is to analyze the 
cumulated effects  of dumped imports on the domestic industry. Hence, it seems to be against the logic 
of injury determination to analyze separately the effects that dumped imports from different countries 
may have on the domestic industry. 
                                                      
1 WT/DS219, para. 116 TN/RL/GEN/51 
Page 2  
 
 6. Considering that a cumulative analysis is the appropriate way to make injury determinations, 
items (a) and (b) of Article 3.3 should then defi ne exceptional circumstances under which cumulation 
would not be appropriate.  
Article 3.3(a) 
 
7. Article 3.3 provides for a country-based de minimis , making explicit reference to the definition 
of de minimis  in Article 5.8. Bearing in mind that, as a rule, individual dumping margins should be 
determined for each known exporter or producer, the wording of Article 3.3(a) creates uncertainty as 
to the reason why the de minimis should be country-based in this Article and to what extent the 
concepts in Articles 3.3 and 5.8 are comparable, similar or unlike.  
8. It should be noted that the cross-referen ce to Article 5.8 is explicitly made only to de minimis , 
not to negligibility. It is not clear, for that reason, whether the concept of negligibility in Article 3.3 is 
the same as in Article 5.8. In principle, there should be no reason why the thresholds would not apply 
for both Articles, and that is what mo st authorities assume in their practice. 
9. If there were different standards in Article 3.3 as opposed to Article 5.8, authorities could face a 
situation in which imports from a country do not m eet the requirements to be excluded according to 
Article 5.8 and also do not fulfill all the conditions to  be cumulated together with the imports of other 
countries under Article 3.3. This situation would,  thus, require an autonomous injury assessment for 
imports of such country, which w ould contradict the very logic of cumulation indicated by the 
Appellate Body. 
10. If the standards in Articles 3.3 and 5.8 were the same, it would suffice to properly cross-
reference Article 5.8 in Article 3.3(a). In view of the considerations above and aiming at properly 
applying the cumulation rule, we suggest th at Article 3.3(a) be redrafted in order  to clarify that 
authorities shall cumulatively assess the effects of the imports from one or more countries, after 
excluding imports from investigations terminated under Article 5.8.  
Article 3.3(b)  
11. Article 3.3(b) intends to indicate that authorities may not make a cumulative assessment of the 
effects of the dumped imports from different count ries if those dumped imports are not under the 
same conditions of competition. The ADA, howev er, provides no guidelines on how to assess the 
conditions of competition. Several Members have also recognized that it would be helpful to have 
some guidelines on how to assess the conditions of competition for the purpose of cumulation
2. 
12. Although imports from different countries may not be under the same conditions of 
competition3, an issue which arises at the injury determin ation stage, the very same issue seems also 
to arise at the earliest stages of the investigation,  when the product under cons ideration is scoped. The 
use of conditions of competition for scoping the pr oduct under consideration is dealt with in a 
separate proposal. 
13. As stated in paragraph 6 supra, Article 3. 3(b) should define excep tional circumstances under 
which cumulation would not be appropriate. In the si tuation in which investigating authorities have to 
                                                      
2 Argentina (TN/RL/W/81), Australia (TN/RL/W/91), China (TN/RL/W/66) and Canada 
(TN/RL/GEN/26). 
3 The draft recommendation discussed in the Working Group on Implementation of the Committee on 
Anti-Dumping Practices (G/ADP/AHG/W/121/Rev. 4) is taken as a reference for any discussion regarding 
conditions of competition.  TN/RL/GEN/51 
 Page 3 
 
 
 cumulate imports from different countri es subject to the same investigation , the scoping of the 
product under consideration plays a pivotal role. If  the concept of product under consideration is 
defined in such a way that only products under the sa me conditions of competition are subject to this 
one investigation, then the conditions for cumu lating imports from different countries would have 
been already fulfilled by the initiation phase. 
14. When imports from different countries are subject to different investigations, cumulation 
would be appropriate only if th e products under consideration of  each investigation are under the 
same conditions of competition. Taking the draf t recommendation discussed in the Working Group on 
Implementation of the Committee on Anti-Dumping Practices (G/ADP/AHG/W/121/Rev. 4) as a reference, we identified some factors that should be  considered in the analysis of the conditions of 
competition: physical characteristics; end use; cha nnel of distribution; degree of interchangeability or 
substitutability, among others, 
15. Moreover, in assessing whether it is appropriate to cumulate imports from different countries 
subject to different investigations or not, inves tigating authorities have to consider whether those 
investigations are simultaneous or not. Since there is no indication in Article 3.3 on how to asses the 
simultaneity issue, we suggest that imports from mo re than one country are to be cumulated only if 
subject to anti-dumping investigations referring to  the same, or largely overlapping, period of 
investigation. 
16. In view of the considerations above and ai ming at properly applying the cumulation rule, we 
suggest that Article 3.3(b) be redrafted in order  to clarify that if imports from more than one 
country are subject to different investigation
, the investigating authorities may cumulatively 
assess the effects of such imports only if  appropri ate in the light of the conditions of competition 
between the products under consideration of each  investigation and provided that those imports 
are subject to anti-dumping investigations referri ng to the same, or largely overlapping, period 
of investigation..  
 Proposed Approach
 
17. We suggest that Article 3.3 be amended as follows: 
3.3 Where imports of a product from more than one country are subject to 
the same investigation, the investigating authorities shall cumulatively assess the effects of such imports, provided that imports from any 
investigation terminated under paragraph 8 of Article 5 are excluded from the cumulative assessment.  
If imports from more than one country a re subject to different investigations 
for which the period of investigation is the same or largely overlapping, the investigating authorities may cumulatively assess the effects of such imports, 
provided that such cumulation is approp riate in the light of the conditions of 
competition between the products under consideration of each investigation 
and that imports from any investiga tion terminated under paragraph 8 of 
Article 5 are excluded from the cumu lative assessment. The assessment of 
those conditions of competition shall be based upon an evaluation of the 
physical characteristics of the products , including technical specifications 
and quality, and their market characteristics, including end uses, 
substitutability, pricing levels and distri bution channels. This list is not 
exhaustive, nor can one or several of th ese factors necessarily give decisive 
guidance. Authorities shall not cumu late imports from more than one TN/RL/GEN/51 
Page 4  
 
 country subject to different investigations if the products under 
consideration of each investigation do not reach the same geographical 
market or do reach the same geographic al markets at different periods of 
time. 
 
__________