WORLD TRADE  
ORGANIZATION   
WT/DS439/1 
G/L/990 
G/ADP/D92/1 25 June 2012 
 
(12-3358) 
 Original:   English 
   
SOUTH AFRICA – ANTI-DUMPING DUTIES ON FROZEN MEAT  
OF FOWLS FROM BRAZIL 
 
Request for Consultations by Brazil 
  
 The following communication, dated 21 June 2012, from the delegation of Brazil to the 
delegation of South Africa  and to the Chairperson of the Dispute Settlement Body, is circulated in 
accordance with Article 4.4 of the DSU.  
_______________ 
 
 
My authorities have instructed me to request consultations with the Republic of South Africa 
(South Africa) pursuant to Article 4 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU), Article XXIII of the General Agreement on Tariffs and Trade 1994  
(GATT 1994), and Article 17 of the Agreement on Implementation of Article VI of GATT 1994  (AD 
Agreement), with respect to South Africa's pr eliminary determination and the imposition of 
provisional anti-dumping duties on frozen meat of fowls of the species Gallus Domesticus , whole bird 
and boneless cuts, originating in or imported from Br azil, as set forth in the International Trade 
Administration Commission's (ITAC) Report No. 389 and published in Notice No. R.105 of Government Gazette  No. 35030, dated 10 February 2012, as we ll as any subsequent determinations or 
related measures.  
2. Brazil considers the preliminary determina tion and the imposition of provisional anti-
dumping duties, as well as the initiation and conduct of  the investigation, to be inconsistent with 
South Africa's obligations under the provisions of  GATT 1994 and the AD Agreement, including, but 
not limited to: 
 Article 2.4 of the AD Agreement because South Africa did not make a fair 
comparison between the export price and the normal value of exporters, including in the establishment of the residual dumping margin. South Africa failed to, inter alia: (i) make reported and verified deductions to  the normal values so as to bring them to 
the same level as the export price; (ii) ma ke reported and verified due allowances for 
differences that affect price comparability; ( iii) exclude, from the establishment of the 
normal value, sales of a type of boneless chicken cuts that was apparently not 
considered to be a like product; and (iv) exclude, from the establishment of the export 
price, sales of products outside the scope  of the product under investigation. 
Furthermore, South Africa failed to indicate what specific information was necessary to ensure a fair comparison, thus impos ing an unreasonable burden on exporters;   
 Article 2.4.2 of the AD Agreement because South Africa did not make a comparison 
between a weighted average normal value with  a weighted average of all prices of all 
comparable export transactions in the calculation of the residual dumping margins for WT/DS439/1 
G/L/990 G/ADP/D92/1 
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  boneless chicken cuts and for whole chicken. By using sales of only one type of 
boneless chicken cuts and one type of whol e chicken to establish normal value, and 
comparing them with the export price of all types of boneless cuts and whole chicken 
sold to the SACU market (even products outside the scope of the investigation), 
South Africa failed to compare the norma l value with all comparable export 
transactions;  
 Articles 3.1 and 3.2 of the AD Agreement because South Africa did not make an 
objective examination, based on positive evid ence, of the volume of dumped imports 
and the effect on prices in the domestic market. South Africa incorrectly considered, 
inter alia : (i) the volume and price of products outside the scope of the product under 
investigation; (ii) import data provide d by Petitioner, which grossly overstated 
official import statistics for the products; and (iii) the existence of a negative effect of 
dumped imports on domestic prices, when the data indicated otherwise;  
 Articles 3.1 and 3.4 of the AD Agreement because South Africa did not make an 
objective examination, based on positive evid ence, of the impact of the alleged 
dumped imports on domestic producers, as th e overwhelming majority of domestic 
injury indicators for whole chicken and fo r boneless chicken cuts were positive or 
showed positive trends;  
 Article 3.5 of the AD Agreement because S outh Africa's causal link analysis was not 
based on an examination of all relevant evidence before it. South Africa failed to consider other known factors causing injury to the domestic industry, inter alia , 
imports from other origins at significantly higher volumes and lower prices, and with 
relevant increase in market share; 
 Article 4.1 of the AD Agreement because S outh Africa did not demonstrate that the 
collective output of the three domestic produ cers, considered as the domestic industry 
for purposes of the injury analysis, constituted a “major proportion” of the total domestic production, since individual or collective output data for these domestic producers were not made available by South Africa, not even by means of a non-
confidential summary;  
 Articles 5.3 and 5.8 of the AD Agreement because the application to initiate the 
investigation did not include sufficient evid ence of dumping, injury and causal link as 
established in Article 5.2 of the AD Agreement, and, accordingly, South Africa failed to examine the accuracy and adequacy of th e evidence provided in the application to 
determine whether there was sufficient ev idence to justify the initiation of the 
investigation. In particular, South Africa fa iled to examine the accuracy and adequacy 
of the information provided in the applicati on relative to items (i), (ii) and (iv) of 
Article 5.2, and, by doing so, failed to reject the application and to promptly 
terminate the investigation;  
 Article 6.1 of the AD Agreement because South Africa did not give notice of the 
information required regarding sales and cost data of the like product sold in Brazil, 
thus failing to provide ample opportunity for exporters to present the required 
evidence prior to the preliminary determ ination and the imposition of provisional 
duties;  WT/DS439/1 
 G/L/990 
 G/ADP/D92/1 
 Page 3 
  
   Article 6.1.2 of the AD Agreement because South Africa failed to make available to 
other interested parties participating in  the investigation evidence presented in 
writing, inter alia , by the government of the exporting Member;  
 Article 6.2 of the AD agreement because South Africa did not afford full opportunity 
for the defense of all interested parties in the investigation;  
 Article 6.4 of the AD Agreement because South Africa did not provide timely 
opportunities for all interested parties to see all relevant, non-confidential information 
so as to prepare presentations on th e basis of that information;  
 Articles 6.5.1 and 6.5.2 of the AD Agreement because South Africa: (i) did not 
require the applicant to furnish non-confid ential summaries of relevant information, 
and (ii) failed to find that a request for confidentiality of certain information was 
unwarranted, and, consequently, failed to disregard that information; 
 Article 6.7, in conjunction with paragraphs  7 and 8 of Annex I, of the AD Agreement 
because South Africa did not apply the pro cedures described in Annex I of the AD 
Agreement for the on-the-spot investigation in the verification visits carried out in 
certain exporters. South Africa failed, inter alia , to advise exporters, prior to the visit, 
of substantial additional information that needed to be provided, and to answer 
questions made by exporters, which were essential to a successful on-the-spot 
investigation, before the verification visit;  
 Article 6.8, in conjunction with paragraphs 1, 3, 5, 6 and 7 of Annex II, of the AD 
Agreement because South Africa made preliminary determinations for certain exporters based on facts available although these exporters did not refuse access to, or fail to provide, necessary information w ithin a reasonable period, nor did they 
significantly impede the investigation. South Africa failed to, inter alia:  (i) specify in 
detail, as soon as the investigation was initia ted, the scope of the like product sold in 
Brazil so that the exporters would know th e sales and cost information required; and 
(ii) take into account in the preliminar y determination all data and information 
provided by exporters, which was verifiable , appropriately subm itted and supplied in 
a timely fashion;  
 Article 6.9 of the AD Agreement because South Africa did not provide interested 
parties with information about the essentia l facts under consideration which form the 
basis for the decision whether to impose definitive measures. In the essential facts 
letter, South Africa simply repeated and confirmed its preliminary determination 
without considering essential facts, such  as information and data submitted in 
response to the preliminary determination; 
 Article 6.10 of the AD Agreement because South Africa only determined an 
individual dumping margin for one exporter, when it should have done so for all 
known exporters;   
 Article 7.1 of the AD Agreement because S outh Africa applied provisional measures 
even though: (i) the investigation had not been initiated in accord ance with Article 5 
of the AD Agreement and interested parti es were not given adequate opportunities to 
submit information and make comments; ( ii) the preliminary determination was WT/DS439/1 
G/L/990 G/ADP/D92/1 
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  inconsistent with Articles 2 and 3 of the AD  Agreement; and (iii) there was no injury 
being caused during the investigation; 
 Article 12.2.1 of the AD Agreement because South Africa did not set forth in the 
public notice of imposition of provisional measures, or in the separate report, 
sufficiently detailed explanations for the preliminary determinations on dumping, 
injury and causal link, and did not refer to the matters of fact and law which led to 
arguments being accepted or rejected. The notice or report did not contain, inter alia:  
(i) a full explanation of the reasons for th e methodology used in the establishment and 
comparison of the export price and the normal value; (ii) considerations relevant to 
the injury determination; and (iii) the main  reasons leading to the determination.  
3. South Africa's measures, therefore, nullify a nd impair benefits accruing to Brazil directly or 
indirectly under the cited agreements. 
4. Brazil reserves the right to raise additional f actual claims and legal matters during the course 
of consultations, and looks forwar d to receiving South Africa's response to the present request and to 
setting a mutually convenien t date for consultations. 
 
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