WORLD TRADE  
ORGANIZATION  TN/RL/W/194 
17 November 2005 
 (05-5437) 
Negotiating Group on Rules Original:   English 
  
 
 
FURTHER EXPLANATION OF THE PUBLIC INTEREST PROPOSAL  
 
Paper from Hong Kong, China
 
 
 
 The following communication, received on 16 November 2005, is being circulated at the 
request of the Delegation of Hong Kong, China. 
 
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In TN/RL/W/174/Rev.1 and TN/RL/GEN/53 (JOB (05)/136), the sponsors have proposed the 
inclusion of a public interest provision in the Anti- dumping Agreement.  Since then, the papers have 
been discussed at the plenary sessions of the Negotia ting Group on Rules, as well as in bilateral and 
plurilateral settings.  Hong Kong, China appreciat es the interest expressed and questions and 
comments raised by Members on the proposal.  To enable Members to better understand the 
objectives and implications of the proposal, this pa per sets out Hong Kong, China’s views on the main 
questions and comments raised by Members on the pr oposal.  References should also be made to the 
draft provision contained in TN/RL/GEN/53.  
 
A. Objective and scope of the proposal
 
 
Objective – Good governance 
 
 As stated in TN/RL/W/174/Rev.1 and TN/RL/GEN/53, anti-dumping measures affect the trade flow between the importing Member and the Members where the subject products originate or 
pass through.  Within the domestic context, the effe cts of an anti-dumping measure are not confined 
to the domestic industry but spread to other economic  sectors.  The consequences for those sectors can 
be quite serious.    
 Consistent with the principles of fairness and due process, the proposal  requires persons 
who may be affected by an anti-dumping measure to be given adequate opportunity to comment on 
the effects of an anti-dumping measure before its im position, and for their comments to be taken into 
due consideration.    
 At the same time, by asking the importing govern ment to consider the effects that an anti-
dumping measure may have on various sectors of  the importing economy, it helps alert the 
administration to cases where the negative effects of an anti-dumping measure outweigh its benefits, and thus helps prevent the use of anti-dumping measures backfiring on the importing economy.     Inclusion of the proposed provision in the Anti-dumping Agreement also contributes to the 
enhancement of transparency  in the anti-dumping regime, by rais ing public awareness of the benefits 
and costs of anti-dumping measures.   TN/RL/W/194 
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 In sum, the proposal is consistent with  what fair and responsible administrations  should do  as 
a matter  of good governance .   
    
Consistency with the current framework of the Anti-dumping Agreement 
 
The Anti-dumping Agreement implicitly recognises that the imposition of an anti-dumping 
duty may not always be the best option.  Article 9.1 advocates some flexibility in applying anti-dumping measure.  Article 9.1 provides, “[t]he de cision whether or not to impose an anti-dumping 
duty in cases where all requirements for the imposition have been fulfilled … [is a decision]  to be 
made by the authorities of the importing Member”; and further provides that “[i]t is desirable that the 
imposition [of an anti-dumping duty] be permissive in the territory of all Members …”. 
By asking the importing Member to consider comments on the effects of an anti-dumping 
measure before its imposition, the proposal provi des specific guidance on how to operationalise the 
principle in Article 9.1.    
Relationship with anti-dumping legislation 
 
A few Members pointed out that the enactment of anti-dumping legislation by a Member 
already reflects a “public interest” decision.  We  see no conflict between that view and the proposal 
itself.  On the contrary, the proposal complements that proposition, by refining the concept of “public 
interest” to be taken into account.  With this proposal, the importing Member does not simply assume 
that the application of an anti-dumping measure is beneficial to that Member, but actually considers 
whether that assumption is correct in the cases befo re it.  Indeed, case-by-case examination results in 
a more relevant assessment of whether the impositi on of an anti-dumping measure is in the Member’s 
public (economic) interest, and is more effective in avoiding anti-dumping measures backfiring on the 
importing Member’s economy.  This certainly re presents a more prudent approach to public 
administration.    
“Non-economic” considerations  
 
 Since the proposal focuses on the effects of  an anti-dumping measure on various sectors of 
the importing economy, it follows that by “public in terest”, the proposal refers to the “economic 
interest” of the importing Member
1. 
  Some Members have queried whether “public interest” should not be broadened to include 
consideration of “non-economic” interest.  Some Memb ers also consider that the proposal should give 
Members the flexibility to apply an “anti- dumping” measure for “non-economic” reasons
2.  Similar 
comments have also been raised by a few Memb ers at the discussions in the Negotiating Group on 
Rules.     We recall that the Anti-dumping Agreement is  an economic instrument.  The Agreement 
allows an anti-dumping measure to be imposed only when certain conditions are met, namely that 
there is dumping which causes injury to the domes tic industry.  Under the Agreement, “dumping” 
refers to a private economic act, and “injury” is a concept defined by economic parameters.  An anti-
dumping measure operates through its  economic effects.  The proposal  simply builds on the current 
framework of the Anti-dumping Agreement, and re quires the effects of an anti-dumping measure on 
other sectors of the economy also to be taken into consideration.  Under th e Agreement, a Member 
cannot apply an anti-dumping measure for “non- economic” reasons.  The proposal does not and 
                                                     
 
1 See paragraph x.5 of the proposal text in TN/RL/GEN/53. 
2 See, for example, the submission by Jamaica in TN/RL/W/188.  TN/RL/W/194 
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 should not change this basic position.  To the ex tent that there are legitimate “non-economic” public 
interest considerations, we believe these are ad equately covered under Artic les XX and XXI of the 
GATT.    
Non-discrimination 
  A number of Members have asked about th e relationship between the proposal and the non-
discriminatory principle in Article 9.2 of the An ti-dumping Agreement.  The proposal does not refer 
to Article 9.2.  Nor does it affect the operation of that provision.  In fact, under the existing 
Agreement, Article 9.1 already refers to the desi rability that the application of anti-dumping measure 
be permissive even where the conditions for applic ation under the Agreement are fulfilled.  The co-
existence of Articles 9.1 and 9.2 does not seem to have caused problems
3.   
  
B. Operation of the provision
 
 
Autonomy in deciding what is in a Member’s econo mic interest, and dispute settlement implications 
 
 Consistent with the objective of the proposal, pa ragraph [x.2] of the draft provision sets out of 
a list of factors (pertaining to the economic effects of an anti-dumping measure) which relevant 
persons may comment on.  The list of factors in pa ragraph [x.2] are developed on the basis of an 
examination of current practices, as well as previ ous submissions by Members on the topic of public 
interest in the Working Group of Implementation of the Committee on Anti-dumping Practices.  The list is non-exhaustive, but seeks to provide guidance for relevant persons submitting comments.    
 
 However, under the proposal, what is in th e importing Member’s economic interest, and 
whether the imposition of the anti-dumping measure in question is in its economic interest, are 
matters to be decided by the importing Member.  Th e term “economic” interest in paragraph [x.5] of 
the draft provision is therefore not defined.  Likewise, the proposal does not prescribe how the importing Member should draw its conclusions based  on the examination of the various factors under 
paragraph [x.2].  
  A number of Members have queried whether th e proposal would mean that the decision of 
whether a measure is in the Member’s economic inte rest, would be subject to dispute settlement, and 
what the implications would be. 
 
 We recognise that whether the imposition of  the anti-dumping measure is in an importing 
Member’s economic interest should be  decided by the importing Member itself.  At the same time, we 
believe it is important that Members do not simply pay lip service to the new provision.  The draft provision seeks to strike a balance by providing for the importing Member to evaluate the comments in an objective and unbiased manner.  The standard  of objectivity and absence of bias is already the 
standard according to which reasonable authorities carry out anti-dumping investigations under the 
Anti-dumping Agreement.  A distinction may be dr awn between factual findings on the one hand, 
which should be made based on a fair and objective evaluation of facts, and the conclusion which the 
importing Member then draws based on the factual findings on the other hand, i.e., whether, having regard to the factual findings, the importing Member is  of the view that the proposed measure is not in 
its economic interest.  The latter should be  decided by the importing Member only. 
 
                                                     
 
3 Apart from Article 9.2, we note that GATT Ar ticle XX expressly prohibits the application of 
measures pursuant to that Article “in a manner which would constitute a means of arbitrary or unjustifiable 
discrimination between countries where the same conditions prevail, or a disguised restriction on international 
trade”.    TN/RL/W/194 
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  We will further reflect on the draft provision to  ensure that valid concerns are taken into 
account.    
Authorities to be involved in implementing the provision 
  The draft provision refers to “authorities” wh ich, under the Anti-dumping Agreement, means 
“authorities at the appropriate level”.  The provision leaves Members to decide which 
authority/authorities would be involved in implementing the provision.  
Methods to be used to analyse the information 
 
 The proposal does not prescribe specific met hods which a Member must use to analyse the 
factors under paragraph [x.2], and we see no reas on to require that the importing Member must 
necessarily undertake economic modelling or comple x econometric analyses.  However, since some 
of the information before the importing Members ma y be quantitative information (e.g. increased cost 
for industrial user/consumers), Members may use qua ntitative methods to analyse the information.  
Other factors may be more suited to a qualitativ e analysis (e.g. availability of choice).   
  We welcome Members’ call for experience-sharing, and further recall that there have been extensive discussions on this and related topics in the Committee on Anti-Dumping Practices (Ad Hoc 
Group on Implementation) in 1999-2001.  The submi ssions by Members currently conducting “public 
interest” analyses have proved particularly useful in understanding those Members’ systems
4.     
  At the same time, what is or is not in a Member’s economic interest, and whether the 
imposition of an anti-dumping measure would or woul d not be in the importing Member’s interest, 
are judgments to be made by each importing Member.  While there may be no universal answer to the 
questions, we expect that when a Member co nsiders these questions, the principles of good 
governance, public accountability and pr oportionality would come into play. 
 
Relationship with competition 
  A number of Members have questioned whether the proposal would bring anti-dumping into 
the realms of competition law.   We note that one of the acclaimed objectives of  anti-dumping is, in fact, to redress perceived 
“unfair competition”.  That said, the proposal does not require Members to conduct a “competition 
analysis” as such.  The factors in paragraph [x.2] are of a similar nature to those which authorities 
already consider in the context of an anti-dumping in vestigation – e.g. cost, availability of the product 
in the market, profitability and competitiveness.  The reference to “competition” is in fact not 
something new to the Anti-dumping Agreement.  For instance, Article 3.5 calls for the examination of 
concurrent factors causing injury to the domestic industry, including, inter alia , trade-restrictive 
practices of and competition between the fo reign and domestic producers.      
 
 It would seem therefore that at present, investigating authorities already have  competence and  
expertise to address those issues or have already established mechanisms for them to seek the views 
from other relevant authorities.  Moreover, as stat ed above, the proposal leaves it to the importing 
Member to decide which authority/authorities will be  involved in the implementation of the provision.  
It does not preclude Members from entrusting the implementation of the provision in an authority 
other than the dumping and injury investigating authorities.  Nor does it preclude the authority responsible for implementing the provision for seeking the advice of relevant bodies.    
                                                     
 
4 For example, G/ADP/AHG/W/76, W/105 and W/116 (submissions by Canada); G/ADP/AHG/W/114 
(submission by the European Communities);  G/ADP/AHG/73 (submi ssion by Israel).  TN/RL/W/194 
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C. Resources and development dimension  
 
Impact on the investigation timeline 
  Some Members have questioned the likely impact of the provision on the duration of the 
investigation.   We recognise that authorities have to properly consider the comments obtained by them, and this proposal, like other proposals, could have an  impact on the investigation period.  The overall 
impact of all the proposals on the investigation peri od will have to be looked at in totality in the 
course of the negotiations.   There are several key stages in the procedur e envisaged under the proposal, starting with the 
publication of a notice inviting the submission of comments, then receiving the comments and 
checking/analysing the relevant information, follow ing by Article 6.9 type of disclosure, before 
making the final decision as to whether to apply th e anti-dumping measure.  In practice, the bulk of 
the work comes only after comments are received.  The proposal currently requires the procedure to 
be completed before definitive anti-dumping meas ure is imposed (paragraph [x.1] of the draft 
provision), but leaves importing Members with sufficien t flexibility to decide on the sequencing of the 
procedural steps
5.  The aim is to allow Members to design their own system so as to make the most 
appropriate use of time.   
  Paragraph [x.3] of the draft provision sets out two basic principles: (1) that opportunity to comment should be given as early as possible, when the relevant persons are in a position to provide 
meaningful comments; and (2) if opportunity to co mment is provided before the details of definitive 
duties are known, relevant persons  should be given an opportunity to update the comments.  We 
believe these principles could be useful for Memb ers to consider in designing their systems.  
  There have been suggestions that allowing the procedure to be conducted after an anti-
dumping measure is imposed, would take the proce dure outside the investigation timeline, thus 
providing greater procedural flexibility to authorit ies.  While we understand the rationale for this 
suggestion, going back to the basic proposition that  an anti-dumping measure which is not in an 
importing Member’s economic interest should not be imposed in the first place, the current proposed structure would be a better option in preventing harm from being caused to the relevant economic 
sectors.  If flexibility is to be provided, and the procedure is to be conduc ted after imposition of a 
definitive duty, the duty should at least be susp ended pending conclusion of the procedure by the 
importing Member. 
  In any event, while the maximum duration of  an investigation is subject to further 
negotiations, adopting a public interest provision  and other proposals does not necessarily mean the 
maximum duration cannot be shortene d.  Under current practice, different authorities complete their 
investigations within different pe riods, ranging generally from 6 to 15 months.  There are clearly other 
factors at play affecting the period of investiga tion, and time saving may be achieved through other 
means, for example, through more effective time management.  We believe some experience-sharing 
in this aspect could be useful.     
                                                     
 
5 We believe the provision provides sufficient flexibility to allow Members to consider the comments 
on public interest either parallel to the dumping and injury  analyses, or sequentially thereafter.  Moreover, if the 
Member entrusts part or all of the public interest procedure in another body, this could ease the time pressure on 
the dumping and injury investigating authorities. TN/RL/W/194 
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 Administrative burden 
 
Some Members have concerns that the proposal would increase the administrative burden on 
investigating authorities. 
 
 As said above, we recognise that this pr oposal, like other proposals, require importing 
Members to undertake further obligations.  Howe ver, we do not believe the burden would be 
excessive, as proved by those Members who already ta ke “public interest” into consideration when 
making the decision whether or not to impose an anti-dumping measure.    
 Moreover, Members should strike a balance betw een concerns of “administrative burden” and 
the merits of the issue at hand.  Ultimately, th e proposal is about good governance: due process, 
procedural fairness, proportionality and public account ability.  Due regard should be given to these 
objectives.  
 
Development dimension  
 We believe the proposal would be particularly beneficial to developing countries, whether as 
exporters or users of the anti-dumping instrument.  In case of the former, an improved global trading 
and economic development environm ent would allow developing countries to build up their export 
industry through expansion and diversion of export s.  From a user perspective, anti-dumping 
investigations are extremely resource-taxing to st art with, and relatively more so for developing 
countries due to their limited resources.  This instru ment should be used with special care in order to 
avoid the effects of an anti-dumping measure backfiring on one’s own economy.  This is particularly relevant for developing countries for whom sound ec onomic development is vital to the improvement 
of national welfare and alleviation of poverty.    
 We believe the inclusion of a public inter est provision in the Anti-dumping Agreement is 
something which every Member of the WTO  would stand to gain.  We will continue to engage with 
Members in discussion of the draft provision in the course of the negotiations.  
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