WORLD TRADE  
ORGANIZATION  TN/RL/W/220 
12 March 2008 
 (08-1092) 
Negotiating Group on Rules Original:   English 
  
 
SUNSET 
 
Communication from Japan
 
 
 
 The following communication, dated 10 March 2008, is being circulated at the request of the Delegation of Japan.    
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 The Delegation of Japan presents this Worki ng Document concerning the issue of "Sunset" 
under the Anti-Dumping Agreement (ADA).  This paper analyses the Rules Chair's text 
(TN/RL/W/213) on this issue as a contribution to the discussions in the Negotiating Group.  It 
includes alternatives to the Chair's text.  This su bmission is without prejudice to the views Japan may 
have on other parts of the text.  Ja pan reserves the right to modify or further refine this document, or 
co-sponsor it with other Members at a later stage
1.   
 
                                                      
1 This paper was submitted to the Negotiating Group as a room document in January 2008.  Editorial 
changes have been done.   TN/RL/W/220 
Page 2  
 
  I. INTRODUCTION 
 We listened carefully to the discussion in the Negotiating Group in December 2007.  The vast 
majority of the Members welcomed the Chai r's proposal as a positive movement towards the 
implementation of an automatic "sunset" clau se, but sill expressed strong concerns about 
shortcomings in the text.   
 
II. DISCUSSION 
 As explained by proponents so far in the Negotiating Group
2;   
 
• AD measures are often imposed for more than five  years, some for considerably longer.   
• We believe that this practice is contrary to  the intent behind Article 11.3 of the Anti-
Dumping Agreement.  Article 11.3 states that  an AD duty shall be terminated after not 
later than five years after their impos ition unless authorities determine that such 
termination would likely lead to continua tion or recurrence of dumping and injury.3  This 
language, together with the "only as long as and to the extent necessary" language of 
Article 11.1, demonstrates that an intent that most if not all AD measures should be 
terminated within five years after imposition (or even sooner).   
• The disciplines under Article 11.3 must be improved in order to accomplish this.   
 
 The Chair's proposed text takes a significant step  in this direction, by proposing an absolute 
"sunset" 10 years after imposition of measures.  We  believe, however, that further strengthening 
would be needed in order to give effect to the in tent behind Article 11.3.  We therefore would like to 
make the following proposal on sunset provisions  to strengthen the disciplines on the duration of 
AD measures, following the intent be hind the existing Article 11.3:   
 1. Addition of provisions to strengthen the disciplines (Article 11.3.4) 
 We regret that the text of proposed Article 11.3.4 does not set forth any meaningful 
disciplines on the substantive determination of like lihood of continuation or recurrence of dumping or 
injury.  It only provides that "all relevant factors"  are to be objectively examined.  At a minimum, 
factors that the authorities must consider should be set forth in the ADA.   
 
 We propose that the Chair's text should incl ude in Article 11.3.4 specific factors that 
authorities must consider in determining lik elihood of dumping and likelihood of injury.
4  We believe 
these factors will lead to greater predictability and tr ansparency in sunset determinations.  Authorities 
must consider all relevant factors, and may not b ase affirmative sunset determinations on assumptions 
or conjecture.  It is important that authorities not base their determination on data or findings in the 
original investigation, but rather focus their analys is on what the export and pricing behaviour of the 
exporter or producer would be in the absence of th e AD measure.  In such analysis, the authorities 
should also take into account changes in the ma rket conditions after the period of the original 
investigation.  In particular, the authorities should not make an affirmative lik ely injury determination 
where such injury is likely to be caused by other factors, which have developed after the period of the 
original investigation.  The proposed list of f actors is designed to enable such forward-looking 
analysis.   
                                                      
2 See, e.g.,  TN/RL/GEN/104 by Japan, TN/RL/GEN/61 by Canada, TN/RL/GEN/74 by Friends of 
Antidumping Negotiations (FANs) and TN/RL/GEN/149 by China.   
 3 For simplicity, we refer to these determinations as the "likelihood of dumping" and the "likelihood of 
injury".    
4 These factors were based on the factors proposed in the submissions by Canada (TN/RL/GEN/61) and 
Japan (TN/RL/GEN/104).    TN/RL/W/220 
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  2. The automatic termination period must be 8 years instead of 10 years (Article 11.3.5) 
 While we welcome the imposition of a definitiv e ending date for all measures, we believe 
that 10 years could be too long.  We still believe th at a 5-year termination would be the intention of 
the drafters of the current ADA.  However, given the strengthened disciplines in our proposals, we 
could accept that the definitive ending date instead be 8 years.    3. Deletion of the provisions related to provisional measures after termination 
(Article 11.3.6) 
 Proposed Article 11.3.6 would allow an authority to take expeditious actions after termination 
on the basis of the "best information available".  Specifically, where an authority initiates a new 
AD investigation within two years after terminat ion of a measure pursuant to Article 11.3.5, 
Article 11.3.6 would allow the authority to impose retrospective provisional measures -- up to 90 days 
before the imposition of provisional measures (though not  prior to the date of the termination).   
 
 We strongly disagree with any provision fo r the expeditious imposition of provisional 
measures based on the best information available, pa rticularly as the measures will have been in place 
for a substantial period of time, giving the domestic  industry ample opportunity to recover from any 
material injury found in the original investiga tion period.  Such a provision would undermine the 
"automatic" expiration of measures contemplated in  Article 11.3.5.  We believe it is necessary to 
eliminate the concern that an authority may rein troduce duties immediately after the termination of 
AD measures.   
 
4. Strengthening of the transitional provisions for AD measures already in place 
(Article 18.3 bis) 
 The Chair's proposal states that, "[f]or the purpose of Article 11.3.5, anti-dumping measures 
in existence as of the date of entry into force of the results of the DDA shall be deemed to be imposed 
on that date".  This provision w ould enable authorities to keep in  force all pre-DDA measures for up 
to 10 years – even if those measures had b een imposed long before that time.   
 
 In order to strengthen the disciplines of Article 11.3, we propose that the proposal be modified regarding measures that were imposed more  than 5 years prior to the entry into force of 
the DDA.  For such measures, the da te of the absolute "sunset" should be based on the actual date of 
imposition of the measures.  Specifically, the maxi mum period of an AD measure under Article 11.3.5 
-- which we propose to shorten to 8 years from the 10 years proposed in the Chair's Text -- should 
begin on the date five years after the actual date of  imposition.  For example, an AD measure that was 
already in place for eight years as of the DDA's entry into force should be terminated at latest five 
years after the effective date of DDA amendment.  All AD measures that were in place for 13 years or 
more should be terminated immediat ely after the effective date.   
 TN/RL/W/220 
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Case 2: 4 years have  passed since the 
imposition on the date of enforcementThe date of entry into force 
of the DDA results
Termination
8 years after the date of enforcement
4 years
Case 3: 8 years 
have passed
5 years5 years 3 years
Case 4: 12 years have passed
5 years7 years
1 year
More than 13 years5 yearsMore than 8 yearsCase 5: More than 13 years 
have passedCase 1: Imposition of the AD duty afterthe date of enforcement<Examples of Transitional Provisions>
Termination
Termination
Termination
Termination8 years
8 years
12 yearsImposition
ImpositionImpositionImpositionImposition
ＲｅｖｉｅｗＲｅｖｉｅｗ
ＲｅｖｉｅｗＲｅｖｉｅｗＲｅｖｉｅｗ
Ｒｅｖｉｅｗ
Ｒｅｖｉｅｗ5 yearsＲｅｖｉｅｗ
Ｒｅｖｉｅｗ
 
5. AD Committee Review 
 We propose to add a provision (in a new footnote) requiring a Member to explain all relevant 
factor regarding its decision to extend the period of  AD measures in accordance with Article 11.3.4 at 
the AD Committee.  The AD Committee would review these decisions.   
 
III. PROPOSED AMENDMENTS TO CHAIR'S TEXT 
11.3.4 A determination whether the expiry of an anti-dumping duty would be likely to lead 
to continuation or recurrence of dumpi ng and injury shall be based on positive 
evidence and involve an objec tive examination of all relevant factors, including, 
inter alia , the following factors, and shall be based on the finding that such 
continuation or recurrence of dumping resulting from the expiry of the duty would 
be likely to cause continuation or recurrence of injury: .  
 
(a) In determining whether the expiry of the duty would be likely to lead to 
continuation or recurrence of dumping,  
 
(1) the normal value of the like product in the most recent one year period and 
any changes in the export transacti on prices and volume of the product 
under consideration to the importing Member;  
 
(2) the past and likely future performance of the exporter and producer, 
including in respect of production, capacity utilization, costs, sales, prices, 
inventories, market share, exports to third countries, and profits;  and   TN/RL/W/220 
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  (3) changes in market conditions in the exporting country, in the importing 
Member and in third countries, including changes in the supply of and 
demand for the like product.aa  
 
(b) In determining whether such continuation or recurrence of dumping resulting 
from the expiry of the duty would be likely to cause continuation or recurrence 
of injury:  
 
(1) the likely volume of the likely dumped imports, and, in particular, whether 
there is likely to be a significant increase in the volume of these imports, 
either in absolute terms or relative to the production or consumption of the 
like product in the importing Member;  
 
(2) the likely prices of the likely dumpe d imports, and likely effect of such 
prices on the prices of the domestic like product, in particular, whether 
these imports are likely to significantly undercut the prices of the domestic 
like product, or lead to price depression or price suppression;  
 
(3) the likely impact of the likely dumped imports on the domestic industry, 
having regard to all relevant econom ic factors and indices, including any 
potential decline in output, sales, market  share, profits, productivity, return 
on investments or utilization of pr oduction capacity, and any potential 
negative effects on cash flow, inventories, employment, wages, growth, 
including efforts to produce a derivati ve or more advanced version of the 
like product, or the ability to raise capital or investments;  
 
(4) changes in market conditions in the exporting country, in the importing 
Member and in third countries, including changes in the supply of and 
demand for the like productbb, as well as any changes in trends and in 
sources of the like product in the importing Member; and  
 
(5) likely effects of known factors other than the likely dumped imports to the 
injury to the domestic industry, including,  inter alia , the likely volumes and 
prices of imports of the like product other than those from exporters or 
producers likely to dump, contraction in demand or changes in the patterns 
of consumption, trade restrictive practices of and competition between the 
foreign and domestic producers, deve lopments in technology and of 
products other than the like product, and the export performance and 
productivity of the domestic industry.  
 
The weight to be accorded to particular factors will depend upon the facts of 
each review, and no one or several factors can necessarily give decisive 
guidance.55, cc  
 
11.3.5 Any anti-dumping duty extended beyond the end of the initial five year period 
following a review in accordance with paragr aph 3 shall be terminated on a date not 
later than eight en years after the date of the imposition of the anti-dumping duty. 
 
11.3.6  If during a  period not longer than two years from the date of termination of an anti -
dumping duty pursuant to sub -paragraph 3.5, the authorities initiate an investigation 
pursuant to Article 5 on the basis of an a pplication containing sufficient evidence of 
dumping, injury and causal link pursuant to Article 5.3, the authorities of the 
importing Member may take, under this Agreement in conformity with its TN/RL/W/220 
Page 6  
 
  provisions, expeditious actions which ma y constitute immediate application of 
provisional measures using the best information available.  In such cases, definitive 
duties may be levied in accordance with this Agreement on products entered for 
consumption not more than 90 days befo re the application of such provisional 
measures, except that any such retroactive assessm ent shall not apply to imports 
entered before the date of  termination of the anti -dumping duty.  
  
18.3.1 bis For the purpose of Article 11.3.5, anti-dumping measures in existence as of the date 
of entry into force of the results of the DDA shall be deemed to be imposed on that 
date.  However, anti-dumping measures which have been imposed for more than 
five years from the date of the initial imposition of the anti-dumping measure as of 
the date of entry into force of the am endments hereto under the DDA shall be 
terminated on a date not later than thirteen  years after the date of entry into force 
less the effective period of time from the initial imposition of th e measure until the 
date of entry into force of the amendments.  
 
-------------------------- 
 
aa This may include evidence of the imposition of anti-dumping or countervailing 
duties by other Members in respect of the like product, and evidence that such 
duties are likely to cause a diversion of imports into the Member.  
 
bb  This may include evidence of the imposition of anti-dumping or countervailing 
duties by other Members in respect of the like product, and evidence that such 
duties are likely to cause a diversion of imports into the Member.  
 
55 Thus, the authorities shall not rely on presumptions that assign decisive weight 
to particular factors.  They may, howev er, draw reasonable inferences about the 
future from evidence on current facts if such inferences are supported by an 
analysis of the evidence as a whole.  
 
cc When a determination that the expiry of an anti-dumping duty would be likely 
to lead to continuation or recurrence of dumping and injury is made based on 
an objective examination of all relevant factors pursuant to the paragraph 4 of 
Article 11.3, the Member shall explain the all relevant factors in the next 
Committee on Anti-Dumping Practices and the Committee shall review it.  
 
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