WT/DS598/4  
 
16 March 2021  
(21-2191) Page: 1/5 
  Original: English  
 
CHINA – ANTI -DUMPING AND COUNTERVAILING DUTY MEASURES ON BARLEY  
FROM AUSTRALIA  
REQUEST FOR THE ESTABLISHMENT OF A PANEL  BY AUSTRALI A 
The following communication, dated  15 March 2021 , from the delegation of Australia  to the 
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.  
 
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1. On 16 December 2020, Australia requested consultations with the People's Republic of 
China ("China") pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes  ("DSU"), Article XXII:1 of the General Agree ment on Tariffs 
and Trade 1994 ("GATT 1994"), Articles 17.2 and 17.3 of the Agreement on Implementation of 
Article VI of the General Agreement on Tariffs and Trade 1994 ("Anti -Dumping Agreement") and 
Article 30 of the Agreement on Subsidies and Countervail ing Measures ("SCM Agreement") with 
respect to measures imposing anti -dumping duties and countervailing duties on barley imported 
from Australia.1  Australia and China held such consultations on 28 January 2021.  Unfortunately, 
these consultations were un successful in resolving this dispute. As a consequence, Australia is 
requesting the establishment of a panel pursuant to Articles 4.7 and 6 of the DSU, Article 17.4 of 
the Anti -Dumping Agreement, Article  30 of the SCM Agreement and Article XXIII of the GAT T 1994.  
2. Australia considers that China's measures imposing anti -dumping and countervailing duties 
on barley from Australia, as set forth in Ministry of Commerce of the People's Republic of China 
("MOFCOM") Notice No. 14 of 2020 (18  May 2020), including any  and all annexes and any 
amendments, modifications or replacements thereof, and Notice No. 15 of 2020 (18  May 2020), 
including any and all annexes and any amendments, modifications or replacements thereof, are 
inconsistent with China's commitments and obli gations including under the following provisions of 
the GATT 1994, the Anti -Dumping Agreement and the SCM  Agreement.  
Interpretation and application of "like product", "product under consideration" and 
"domestic industry"  
i. Articles 2.1, 2.6, 3.1, 3.6 and 5.2 (i) and (iv) of the Anti -Dumping Agreement and 
Articles 11.2(i) and (iv), 15.1, footnote 46 and 15.6 of the SCM Agreement because, 
inter alia , in conducting its investigation China incorrectly defined and applied the 
"product under consideration" and t he "like product" including, inter alia, by failing to 
account for the difference between: seed barley and other barley; malting barley and 
feed barley; and different qualities of malting barley.  
ii. Article 4.1 of the Anti -Dumping Agreement and Article 16.1 of the SCM  Agreement 
because, inter alia , in conducting its investigation China incorrectly defined and applied 
the "domestic industry" in part because of its incorrect definition and application of  
"product under consideration" and "like product".   
 
1 WT/DS598/1.  WT/DS598/4  
 
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  Initiation of the investigations  
iii. Articles 5.1, 5.2 and 5.4 of the Anti -Dumping Agreement and Articles 11.1, 11.2 and 
11.4 of the SCM Agreement because, inter alia , China improperly initiated 
investigations on the basis of applications that were not made "b y or on behalf of the 
domestic industry" and because, inter alia , China failed to determine, on the basis of 
an examination of the degree of support for, or opposition to, the application expressed 
by domestic producers of the like product, that the applic ation has been made "by or 
on behalf of the domestic industry".  
iv. Articles 5.2, 5.3 and 5.8 of the Anti -Dumping Agreement and Articles 11.2, 11.3 and 
11.9 of the SCM Agreement because, inter alia , China initiated investigations without 
sufficient evidence, China failed to examine or review the accuracy and adequacy of 
the evidence provided in the application, and China failed to reject the application or 
terminate promptly the investigation given the lack of sufficient evidence.  
Conduct of the investigations  
v. Article 6.1 of the Anti -Dumping Agreement and Article 12.1 of the SCM  Agreement 
because, inter alia , China did not provide all interested parties and interested Members 
with sufficient notice of and opportunity to present all relevant information and 
evidence, including, inter alia , by failing to take into account relevant factors in 
determining deadlines for response to questionnaires and comments on the Final 
Disclosures, and failing to make interested parties aware of alleged deficiencies in the 
informa tion provided and to give opportunities to rectify such alleged deficiencies.  
vi. Article 6.2 of the Anti -Dumping Agreement because, inter alia , throughout the 
investigation China did not provide all interested parties a full opportunity for the 
defence of the ir interests.  
vii. Articles 6.4 of the Anti -Dumping Agreement and Article 12.3 of the SCM  Agreement 
because, inter alia , China failed to provide timely opportunities for all interested parties 
to see all non -confidential information used by authorities that was  relevant to the 
presentation of their cases, and to prepare presentations on the basis of this 
information, including, inter alia , with respect to: alleged deficiencies in the information 
provided by the interested parties and the basis for disregarding s uch information; the 
composition of the domestic industry; the determination of normal value and export 
prices, including data sourced from Global Trade Atlas; the adjustments for differences 
in price comparability; the calculations of the dumping margins;  the financial 
contributions and specificity of the alleged subsidy programs; the calculation of the 
subsidy rates; and the determination of injury and causation.  
viii. Articles 6.4 and 6.5.1 of the Anti -Dumping Agreement, and Articles 12.3 and 12.4.1 of 
the SC M Agreement because, inter alia , China appears to have relied on confidential 
information from interested parties and has failed to provide, or require the interested 
parties to provide, adequate non -confidential summaries of allegedly confidential 
informa tion or because China wrongly treated information as being confidential.  
ix. Article 6.6 of the Anti -Dumping Agreement and Articles 12.5 of the SCM  Agreement 
because China failed during the course of the investigation to satisfy itself as to the 
accuracy of th e information supplied by interested parties, including, inter alia : the 
composition of the domestic industry; the production of barley in Australia and the 
operation of the Australian barley market; the operation of the alleged subsidies; the 
domestic pri ces of barley in China; and the accuracy of the statistics of various 
economic indicators related to the state of China's barley industry.  
x. Article 6.9 of the Anti -Dumping Agreement and Article 12.8 of the SCM  Agreement 
because, inter alia , China failed to disclose to the interested parties the essential facts 
under consideration which form the basis for the determinations in sufficient time for 
the parties to defend their interests, including by failing to make available all relevant 
information on the matt ers of fact, law and reasons  which led to the imposition of the WT/DS598/4  
 
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  final duties, including, inter alia : alleged deficiencies in the information provided by the 
interested parties and the basis for disregarding such information; the composition of 
the domestic  industry; the determination of normal value and export prices, including 
data sourced from Global Trade Atlas; the decisions regarding adjustments for 
differences in price comparability; the calculations of the dumping margins; the 
financial contributions  and specificity of the alleged subsidy programs; the calculation 
of the subsidy rates; and the determination of injury and causation.  
The use of facts available  
xi. Article 6.8, and Annex II.1, 3, 5, 6 and 7 of the Anti -Dumping Agreement and 
Article  12.7 of the SCM Agreement because China improperly based its determinations 
on the facts available. In particular, China was not entitled to reject necessary 
information submitted by Australian interested parties as such information was 
submitted in a reas onable period of time and Australian interested parties did not 
significantly impede the investigation.  China also, inter alia : 
a. failed to take into account information that was verifiable, appropriately 
submitted so that it could be used in the investigat ion without undue 
difficulties, which was supplied in a timely fashion, and, where applicable, 
which was supplied in a medium or computer language requested by China;  
b. improperly and without justification disregarded information provided by 
interested parti es acting to the best of their abilities;  
c. failed to inform supplying parties forthwith of the reasons for not accepting 
evidence or information or to give an opportunity to provide further 
explanations within a reasonable period;  
d. failed to give reasons for the rejection of such information in its published 
determination; and  
e. failed to exercise special circumspection in regard to information from 
secondary sources in making its findings.  
Dumping determination  
xii. Article 2.2 of the Ant i-Dumping Agreement because, inter alia , China improperly 
determined normal value by reference to third country sales without proper 
justification, without establishing that the third country was "appropriate", and without 
establishing that the price of th e like product when exported to that third country was 
"comparable" and "representative".  
xiii. Article 2.3 of the Anti -Dumping Agreement, because, inter alia , China did not determine 
export price on a reasonable basis when it improperly discarded the informati on 
provided by exporters on their export sales of barley to China, and determined the 
export price by reference to third party information.  
xiv. Article 2.4 of the Anti -Dumping Agreement because China failed to make a fair 
comparison between the export price an d normal value by, inter alia , failing to ensure: 
that normal value and export price were compared at the same or equivalent levels of 
trade; that the comparison was made in respect of sales made at as nearly as possible 
the same time; that due allowances were made for all factors affecting price 
comparability; and that allowances were made for costs and profits accruing. Moreover, 
China failed to indicate what information was necessary to ensure a fair comparison, 
in part because of its failure to disclose  its methodologies for determining both export 
price and normal value.  
xv. Article 2.4.2 of the Anti -Dumping Agreement, because, inter alia , China did not 
establish the margin of dumping on the basis of a comparison of a weighted average 
normal value with a w eighted average of prices of all comparable export transactions.  WT/DS598/4  
 
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  xvi. Article 6.10 of the Anti -Dumping Agreement because, inter alia , China did not 
determine individual margins of dumping for each known exporter or producer 
concerned of barley.  
Countervailing d etermination  
xvii.  Articles 1.1, 1.2, 2.1, 2.2 and 2.4 of the SCM Agreement because, inter alia , China 
improperly established the existence of a subsidy, as defined in paragraph 1 of Article  1 
of the SCM Agreement, including by improperly determining that a subsidy existed, 
that a "benefit" was conferred on Australian producers or exporters of barley, and that 
the alleged subsidy was specific to certain enterprises within Australia.  
Determination of injury and causation  
xviii.  Article 3.1 of the Anti -Dumping Agreeme nt and Article 15.1 of the SCM  Agreement 
because China failed to base its determination of injury on positive evidence and an 
objective examination of both (a) the volume of the allegedly dumped and subsidized 
imports of Australian barley and the effect of  these imports on prices in the domestic 
market for like products, and (b) the consequent impact of the allegedly dumped and 
subsidized imports of Australian barley on domestic producers of like products. China's 
failure to meet the obligations under Artic le 3.1 is linked to its failure to comply with 
Articles 3.2, 3.4 and 3.5 of the Anti -Dumping Agreement and China's failure to meet 
the obligations under Article 15.1 is linked to its failure to comply with Articles 15.2, 
15.4 and 15.5 of the SCM Agreement.  
xix. Article 3.2 of the Anti -Dumping Agreement and Article 15.2 of the SCM  Agreement, 
because: (a) with regard to the volume of the allegedly dumped and subsidized imports 
of Australian barley, China failed to consider, inter alia , all the positive evidence 
available on the record, including year -to-year fluctuations in the volume of these 
imports, and failed to conduct an objective analysis of whether there had been a 
significant increase in these imports, either in absolute terms or relative to production 
or consumption in China; (b) with regard to the effect of the allegedly dumped and 
subsidized imports of Australia barley on prices, China did not consider, inter alia , all 
the positive evidence available on the record, including year -to-year fluctuations in the 
volume of these imports, and failed to conduct an objective analysis of whether there 
had been a significant price undercutting by these imports as compared with the price 
of a like product in the domestic market, or whether the effect of the imports w as 
otherwise to depress prices to a significant degree; and (c) China failed to consider 
whether the allegedly dumped and subsidized imports of Australian barley prevented 
price increases, which otherwise would have occurred, to a significant degree.  
xx. Article 3.4 of the Anti -Dumping Agreement and Article 15.4 of the SCM  Agreement, 
because China failed to (a) conduct an objective examination of the impact of the 
allegedly dumped and subsidized imports of Australian barley on the domestic industry 
by, inter al ia, conducting the examination in relation to a wrongly defined domestic 
industry under Article 4.1 of the Anti -Dumping Agreement and Article 16.1 of the SCM 
Agreement; (b) evaluate the role, relevance and weight of all the relevant economic 
factors and in dices having a bearing on the state of the domestic industry, limiting its 
analysis to a mechanical checklist approach that, inter alia , did not take into account 
all the positive evidence available; and (c) give full weight to factors such as planting 
costs in making its finding that the domestic industry had suffered a substantial injury.  
xxi. Article 3.5 of the Anti -Dumping Agreement and Article 15.5 of the SCM  Agreement, 
because China failed to (a) demonstrate that the allegedly dumped and subsidized 
imports  of Australian barley, through the effects of the alleged dumping and subsidies, 
caused injury to the domestic industry; (b) base its purported demonstration of the 
causal relationship on an objective examination of all relevant evidence; (c) objectively 
examine other known factors that injured the domestic industry, including, inter alia , 
non-subject imports and support provided by the Chinese government for corn and 
wheat production; and (d) not attribute the injuries caused by those other factors to 
the imports of Australia barley. Moreover, China improperly based its assessment of WT/DS598/4  
 
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  causation on flawed considerations, examinations, and evaluations under Articles 3.2 
and 3.4 of the Anti -Dumping Agreement and Articles 15.2 and 15.4 of the SCM 
Agreement.  
Impo sition of duties  
xxii.  Article VI:2 of the GATT 1994 and Article 9.1, 9.2 and 9.3 of the Anti -Dumping 
Agreement because, inter alia,  China: has imposed anti -dumping duties where all 
requirements for their imposition have not been fulfilled; has not imposed 
anti-dumping duties in appropriate amounts; has not imposed anti -dumping duties on 
an individual basis; has not named the suppliers of the product concerned; and has 
imposed anti -dumping duties in excess of the margin of dumping that should have 
been establishe d under Article 2 of the Anti -Dumping Agreement.  
xxiii.  Article VI:3 of the GATT 1994 and Article 19.4 of the SCM Agreement because, 
inter alia, China used an inadequate methodology to determine an amount of 
subsidization, and therefore improperly levied counterv ailing duties on imported 
Australian barley products in excess of the amount of the subsidy that would have been 
found to exist had the investigation been conducted in compliance with the SCM 
Agreement.  
Transparency  
xxiv.  Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement and Articles 22.3 and 22.5 of 
the SCM Agreement because, inter alia , China failed to provide in sufficient detail the 
findings and conclusions reached on all issues of fact and law it considered material, 
and the reasons for acceptance or r ejection of relevant arguments and claims including, 
inter alia : its decision to use facts available; the composition of the domestic industry; 
the determination of normal value, including the decision to use export sales to Egypt; 
the determination of exp ort price; its decision to source data from Global Trade Atlas; 
adjustments made, if any, to undertake a fair comparison; calculation of the dumping 
margin; imposition of dumping duties; acceptance of the applicant's legal and factual 
assertions and reject ion of the same from the Australian government and other 
Australian interested parties with respect to the alleged financial contribution, 
specificity and injury caused by the alleged subsidy programs; calculation of the 
subsidy rates; imposition of counte rvailing duties; and the determination of injury and 
causation in respect of both investigations.  
Consequential claims  
xxv.  Article VI of the GATT 1994 as a consequence of the breaches of the Anti -Dumping 
Agreement and the SCM Agreement described above.  
xxvi.  Article 1 of the Anti -Dumping Agreement as a consequence of the breaches of the 
Anti-Dumping Agreement described above.  
xxvii.  Articles 10 and 32.1 of the SCM Agreement as a consequence of the breaches of the 
SCM Agreement and the GATT 1994 described above.  
3. China's measures also appear to nullify or impair the benefits accruing to Australia directly 
or indirectly under the cited agreements.  
4. Therefore, Australia respectfully requests, pursuant to Articles 4.7 and 6 of the DSU, 
Article  17.4 of the Anti -Dumping Agre ement, Article 30 of the SCM Agreement, and Article  XXIII of 
the GATT 1994, that the Dispute Settlement Body establish a panel to examine this matter, with the 
standard terms of reference as set out in Article 7.1 of the DSU.  
5. Australia asks that this reque st be placed on the agenda for the meeting of the Dispute 
Settlement Body to be held on 26 March 2021.  
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