WORLD TRADE  
ORGANIZATION  TN/RL/W/224 
12 March 2008 
 (08-1091) 
Negotiating Group on Rules Original:   English 
   
LESSER DUTY RULE 
 
Communication from Brazil;  Chile;  Colombia;  Cost a Rica;  Hong Kong, China;  Israel;  Japan; 
 
Korea, Rep. of;  Norway;  Singapore;  Switzerland;  the Separate Customs  
Territory of Taiwan, Penghu, Kinmen and Matsu;  and Thailand  
   The following communication, dated 10 March 2008, is being circulated at the request of the 
Delegations of Brazil;  Chile;  Colombia;  Costa Rica;   Hong Kong, China;  Israel;  Japan;  Korea, 
Rep. of;  Norway;  Singapore;  Switzerland;  th e Separate Customs Terr itory of Taiwan, Penghu, 
Kinmen and Matsu;  and Thailand.   
 
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 The Delegations of Brazil;  Chile;  Colombia;  Costa Rica;  Hong Kong, China;  Israel;  
Japan;  Korea, Rep. of;  Norway;  Singapore;  Switzerland;  the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu;   and Thailand present this Working Document concerning the 
issue of the "Lesser Duty Rule" under the Anti-Dump ing 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 submission is without prejudice to the views we may have on other parts of the text.  We reserve 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 Room Document in January 2008.   TN/RL/W/224 
Page 2  
 
  I. INTRODUCTION  
 We listened carefully to the discussion in the Negotiating Group in December 2007 and 
January 2008.  All the Members were surprised by th e elimination of reference to the lesser duty rule 
from the current draft text of the Agreement.  No Member requested  or proposed elimination of the 
existing provision -- including those Members who oppose a mandatory lesser duty rule.    
 The ADA leaves it to the discretion of the authority whether the amount of an anti-dumping 
duty to be imposed shall be the full margin or l ess.  The ADA further states that the duty may be less 
than the margin if such lesser duty would be adequate  to remove the injury to the domestic industry.  
The objective of the rule is not to arbitrarily re duce the amount of an AD duty, but to ensure that 
any AD duty is set at a level adequate to permit the domestic like product to compete with products 
subject to antidumping measures without being injured.  We believe that the application of the lesser 
duty rule should be an obligation.   
 
 A significant number of Members have already implemented lesser duty rules, faithfully 
observing the current language of the ADA.
2  Those Members acknowledge that the current provision 
is not mandatory, but they chose to implement pr ovisions to foster a better system, following the 
direction suggested by the Uruguay Round.  The mandate for Rules under the Doha Development 
Agenda calls for clarifying and improving disciplin es under the ADA.  In this regard, the positive 
actions of these Members should not be undermin ed under the DDA, the spirit of which is, we 
understand, to increase trade flows, enhance pred ictability and provide more transparency.   
 
II. DISCUSSION 
 We recall that the discussions on this issu e within the Rules Negotiating Group have been 
intense.  Detailed standards were also examined.  Nevertheless, all the efforts were neglected without 
any explanation in the Chair's text.  Indeed, the Chair's text takes a step backward and simply 
eliminates the existing "lesser duty" language.   
 
 We benefit from some of the interventions fro m the floor, which set forth the interpretation 
that the elimination of the reference to the lesser dut y rule will change the basic concept of the current 
ADA on the rules.  The Chair's text only stipulates th at the authority is required to consider whether 
the amount of an anti-dumping duty to be imposed shall be less than the full margin under the public 
interest test.  The Chair's text, however, falls s hort of the current ADA text.  The lesser duty rule 
should be considered on the basis of the principle that AD measures shall not exceed what is needed 
in order to relieve the domestic industry from inju ry caused by dumped imports.  This principle has 
already been incorporated explicitly in the current ADA and is independent of the consideration to the 
public welfare of the importing Member.  The Chair' s text should have been drafted to preserve the 
"lesser duty" obligation.   
 
 As the Chair invited Members' view for a balanced text, we propose the following 
amendments reflecting the balance on the issue of the lesser duty rule, and provide a real basis for 
further discussion of the issue in the negotiations.3   
 
                                                      
2 E.g., Argentina, Australia, Brazil, EC , India, New Zealand, and Turkey.   
 3 There is an argument that the AD A should provide core disciplines with regard to the establishment 
and maintenance of the lesser duty rule, in order to ensure orderly application of the rule.  At this stage, we do 
not insist that the text should deal with this aspect because our priority is first to provide a basis for further 
discussions.  Therefore this working paper does not prejudg e Members' view in this re spect.  We also leave it to 
our future discussions whether the mandatory requirement in Article 9.1.1 should apply mutatis mutandis  to 
Article 8.1 and other relevant provisions.    TN/RL/W/224 
 Page 3 
 
 
  III. PROPOSED AMENDMENTS TO CHAIR'S TEXT 
9.1 The decision whether or not to impose an anti dumping duty in cases where all requirements 
for the imposition have been fulfilled, and the decision whether the amount of the anti dumping duty to be imposed shall be the full margin of dumping or  less, are decisions to be made by the authorities 
of the importing Member.
, provided that the imposition shall be permissive in the territory of all 
Members, and the duty shall be less than the margin  if such lesser duty would be adequate to remove 
the injury to the domestic industry.  Each Member whose national legislation contains provisions… 
[Public Interest (note:  Co-sponsors of this doc ument do not prejudge the possible amendment on the 
public interest)].  
 
 
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