. /.  WORLD TRADE  
ORGANIZATION  TN/RL/GEN/50 
1 July 2005 
 (05-2840) 
Negotiating Group on Rules Original:   English 
  
 
PROPOSAL ON PRODUCT UNDER CONSIDERATION 
 
Communication from Brazil, Chile, Israel, Korea, Singapore, Switzerland, Thailand
 
  
 The following communication, dated 30 June 2005,  is being circulated at the request of the 
Delegations of Brazil, Chile, Israel, Ko rea, Singapore, 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)/ 133), also be circulated as a formal document. 
 
_______________ 
 
Introduction 
1. In a previous submission to the NGR
1, the “Friends of Antidumping Negotiations” (FANs) 
identified the lack of a definition for product under consideration2 in the Antidumping Agreement 
(ADA) as a potential issue for negotiations. China (TN/RL/W/66) and Canada (TN/RL/GEN/26) have 
also indicated their interest in discussing this issu e. This submission proposes an approach to clarify 
the requirements of the ADA in this respect. 
2. In US ─ Softwood Lumber , the Panel, when analyzing Article  2.6 of the ADA, stated: “as the 
definition of "like product" implies a comparison w ith another product, it seems clear to us that the 
starting point can only be the "other product", be ing the allegedly dumped product. Therefore, once 
the product under consideration is defined, the " like product" to the product under consideration has 
to be determined on the basis of Article 2.6. However, in our analysis of the AD Agreement , we could 
not find any guidance on the way in which the "pro duct under consideration" should be determined ”3 
(emphasis added). 
Description of the issue  
3. We share Canada’s assessment that “the lack of  guidance in the Agreement on the concept of 
product under consideration creates systemic problem s. In particular, it can lend itself to Members 
capturing, in a single investigation, determinati on and remedy, products that can be completely 
different in terms of their physical characteri stics, end uses, and channels of distribution”4.  
4. In order to avoid that investigating authoriti es define a group of products destined for very  
different market segments to be a single product un der consideration and thus subject to the same 
investigation, it should be clarified that each i nvestigation should encompass only products that are 
                                                      
1 TN/RL/W/7 and TN/RL/W/10. 
2 The co-sponsors are willing to di scuss whether there would be any reason not to replace the concept 
of “product under investigation” with “pro duct under consideration” throughout the ADA. 
3 WT/DS264/R, para. 7153. 
4 TN/RL/GEN/26, para 5. TN/RL/GEN/50 
Page 2  
 
 under the same conditions of competition. A better sc oping of any investigation in its very beginning 
will not only enhance predictability and reduce costs fo r all interested parties, but also help solving 
problems throughout the investigation
5.  
5. Taking the draft 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 could be clearly associated with the scoping of an investigation: physical 
characteristics; end use; channel of distribution;  degree of interchangeability or substitutability, 
among others, insofar as those factors seem necessary to ensure a certain degree of 
homogeneity/similarity to the pr oduct under consideration.  
Proposed Approach  
6. The ADA should be clarified so as to require i nvestigating authorities to scope the product 
under consideration based on th e conditions of competition, as a condition for initiating any 
investigation. We suggest to insert in Article 5 the following provision6: 
 
An investigation can be initiated and sub sequently conducted on ly with a proper 
definition of the scope of the product under consideration which can encompass only 
products that are under the same conditions of competition. The assessment of those 
conditions of competition shall be ba sed upon an evaluation of the physical 
characteristics of the products, includi ng technical specifications and quality, and 
their market characteristics, including e nd uses, substitutability, pricing levels and 
distribution channels. This list is not ex haustive, nor can one or several of these 
factors necessarily give decisive guidan ce. Products that do not reach the same 
geographical market or that do reach the same geographical markets at clearly distinct periods of time are not to be considered the same product under 
consideration. 
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5 See proposal on the cumulation rule set out in Article 3.3 of the ADA. 
6 The co-sponsors consider that article 12 will have to be amended in order to ensure that authorities 
provide reasoned explanations about the determination of the product under consideration.