WORLD TRADE  
ORGANIZATION  TN/RL/W/198 
18 January 2006 
 
 (06-0230) 
Negotiating Group on rules Original:  English 
  
 
COMMENTS BY JAMAICA ON ANTI-DUMPING RELATED 
PROPOSALS TO THE NEGOTIATING GROUP ON RULES 
DISCUSSED AT THE GROUP’S MEETING ON 24-28 OCTOBER 2005 
 
 
 The following communication, dated 17 January 2 006, is being circulated at the request of the 
Delegation of Jamaica.  
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 Jamaica reserves the right to modify or supplem ent the comments and proposals set out below. 
 
1. TN/RL/GEN/64 [JOB(05)/187] - Further Submission on Facts Available – Paper from 
Chile;  Hong Kong, China;  Israel;  Korea, Rep. of;  Norw ay;  the Separate Customs 
Territory of Taiwan, Penghu, Kinm en and Matsu;  and Thailand 
 
 Jamaica credits the rationale offered for the prop osals outlined in this paper.  However, while 
it seems clear that respondents should be allowe d flexible time frames in which to provide 
information; that investigating authorities should prov ide reasons for the rejection of information; and 
that investigating authorities should rely only on accurate, verifiable information submitted by the 
parties, Jamaica is of the view that the current  language in the Agreement adequately addresses these 
requirements.    The change suggested at Paragraph 6.8 is not acceptable to Jamaica as it appears to omit 
possible scenarios where a party may impede an investigation other than by refusal to allow 
verification. 
 
2. TN/RL/GEN/71[JOB(05)/243] – Submission on Circumvention  – Paper from the 
United States 
 
 Jamaica agrees with the United States that the Anti-Dumping Agreement should explicitly 
recognize the concept of circumvention of an anti- dumping or countervailing du ty and should provide 
uniform and transparent procedures for conducting anti-circumvention enquiries.     The initiation of a new investigation in circum stances of circumvention would be extremely 
burdensome and render the resources spent on the initia l investigation a waste.  This would undermine 
the effectiveness of the trade remedy mechanism.  Further, Jamaica agrees that the behaviour 
described in the United States’ paper, marginal modifications or alterations of the physical 
characteristics, production or shipment, where done in such a manner that undermines the purpose and 
effectiveness of the duty imposed constitute ci rcumvention.  Jamaica therefore supports the 
United States’ proposal with respect to the inclusion of the suggested draft text as Article 9.6 of the 
ADA and Article 19.5 of the SCM.  Jamaica submit s the following definition for consideration by 
Members: TN/RL/W/198 
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“Circumvention” means a change in the patte rn of trade between third countries and 
the importing Member which stems from a practice for which there is insufficient due cause or economic justification other than be ing referable to an attempt to avoid an 
anti-dumping or countervailing duty.” 
As a practical matter, Jamaica believes that a discussion is necessary regarding what constitutes a 
“minor or insignificant” process of finishing or asse mbly.  In some cases, for example, the finished 
product is classified differently than in its raw ma terial form, and yet it may be intensely disputed 
whether the process for completion results in a diff erent product.  This seems to be a point for 
potential dispute and objective criteria may need to be put in place to deal with this.  A change in 
tariff classification as between unfinished parts of  a product and its finished counterpart may be 
evidence of substantial transformation.  However, while such a factor may be useful when dealing 
with unfinished or unassembled goods, parts may be sh ipped at different times and other factors may 
be varied, such as shipment to different importers, if  the aim is to avoid detection.  In determining 
whether there has been circumvention, it would also be appropriate to examine the general 
characteristics and uses of the finished and assemble d product, as well as the significance of the part 
of the good concerned.     Jamaica does not agree with the proposal to include the following language as Article 9.6.1 of the Anti-Dumping Agreement (SCM Article 19.6):  
“Exports of a product that is not within the product under consideration are in 
circumvention of the [anti-dumping duty] [countervailing duty] originally imposed if:  
(i) subsequent to the filing of the a pplication, exports of the product under 
consideration have been supplanted, in w hole or in part, by exports from the same 
country of another product that has the same  general characteristics and uses as the 
product under consideration;  or”  
The principal difficulties with this aspect  of the proposal are the following: 
  (i) Timing.  The time for assessing whether an alteration in the pattern of exports 
constitutes circumvention is subsequent to  the imposition of the anti-dumping or 
countervailing duty and not su bsequent to the filing of the application for the 
imposition of such duties.  Adoption of the United States’ proposal would mean that 
exporters may be penalized for altering their trade practices at a ti me when there is no 
legal constraint on them not to do so. 
  (ii) Over-inclusiveness.  The proposal would give rise to the possibility that other 
legitimate trade practices may be classifi ed as acts of circumvention.  Even 
subsequent to the imposition of the anti-dumping or countervailing duty, exporting products having “the same general char acteristics and uses” as the product under 
consideration may be in response to a le gitimate commercial demand in the importing 
country and thus sound business practice on th e part of the exporter rather than a 
result of any sinister intent to circumvent an existing duty.  Furthermore, such exports 
may nevertheless be sufficiently different from the original product under 
consideration that they cannot simply beco me subject to the duty already imposed 
and, still further, said products may not be dumped. 
 Jamaica therefore believes that the proposal, as pres ently drafted, is not appropriate and will not only 
capture minor alteration to the product under consideration after th e imposition of the duty, but will 
also trap other legitimate trade practices.    TN/RL/W/198 
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 In order to guard against having legitimate non-circumvention trade practices be the subject 
of affirmative circumvention determinations, at a minimum, the ADA should acknowledge that 
commencing the export of a product having the same  general characteristics and uses as the product 
under consideration subsequent  to the imposition of the duty, should not be classified as an attempt to 
circumvent the duty unless: 
  (i) This product did not exist in its current form at the time of the imposition of the duty 
(that is that another product underwent so me form of alteration to yield the new 
exported product);  and 
 
 (ii) It would also be useful to note that to be appropriately the focus of an anti-
circumvention enquiry the new product, which is the subject of an anti-circumvention 
enquiry, should also be determined to be exported at dumped prices. 
 3. TN/RL/GEN/65/ Rev.1 [JOB(05)/188/Rev.1 ] - Proposal on Dumped Imports – Paper 
from Brazil;  Chile; Hong Kong, China;  Israel;  Japan;  Korea, Rep. of;  Mexico; Norway;  Pakistan;  Peru;  Singapore;  the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu;  and Thailand 
 
 Jamaica would appreciate an appropriate clarification of the term “dumped imports” in the ADA.  Jamaica wishes to reserve comment on the deta ils of this paper at this time and will comment 
more fully after it has had time to perform an additio nal review of the proposal and the jurisprudence.   
 
4. TN/RL/GEN/73[JOB(05)/245]– Product Under Consideration – Paper from Canada 
 
 Jamaica believes that this proposal is useful, with the caveat that follo ws.  Jamaica reads the 
proposal to permit an investigating authority to  initiate more than one investigation and not 
necessarily to expand the scope of an investigation of a related product so that where the good alleged 
to be dumped might be related but distinct fro m another good also potentially dumped, then the 
Authority will be able to address both instances in separate investigations.  A case in point would be 
the initiation of an investigation against two differe nt kinds of a product.  This would simplify the 
process of refining the scope of the investigation and also of various calculati ons that would have to 
be made in respect of the two products. In light of  the limited information that may be available prior 
to initiation, Jamaica is of the view that the pr oposed change would assist an authority which had 
defined its scope and found later in an investigation that the need had arisen to examine another 
related but distinct product.   
 
 Caveat.   Jamaica would ask that the first sentence of the proposal that reads, “only be initiated 
and subsequently conducted with a proper de termination of the scope of the product  under 
consideration” be examined to determine whether this imposes an  additional standard for initiation 
along with the dumping, injury and causation standa rd.  If so, Jamaica would take the position that 
this places an unreasonable burden on the authority at that initial stage of the investigation.  If it in 
fact does raise this additional standard, then Jamaic a is of the view that this sentence should not be 
included in the ADA.  
5. TN/RL/GEN/72 [JOB(05)/244] – Further Proposal on the Submission of Data 
Concerning Affiliated Parties – Paper from Japan 
 
 Jamaica notes the valid concern about burden, expressed as the rationale for the proposal, but 
is of the view that the amendments proposed are not an appropriate remedy.  TN/RL/W/198 
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   At most, there should only be a presumption that unless the specified control threshold is met, 
a respondent to an anti-dumping investigation will have a difficulty in obtaining the necessary 
information on its affiliate.  Affiliate entities may well have the desire to co-operate in an anti-
dumping investigation against a respondent entit y because the imposition of an anti-dumping duty 
may affect their own commercial prospects.   
 
 Jamaica suggests that the codification of th is proposal could be accomplished in the ADA by 
retaining the obligation to provide  information on affiliated parties but requiring that Investigating  
Authorities take into account actual difficulties e xperienced by a respondent in submitting this 
information, especially in cases where it is estab lished that the Respondent does not have control as 
determined in accordance with the suggested threshold rules.   
  Jamaica considers that it is especially important that authorities not be limited in the information requests that they make in this matter,  given the importance of this information to the 
calculations.  Additionally, Jamaica questions whethe r this proposal also takes into consideration 
forms of affiliation other than control which are noted  in footnote 11 to Article 4.1 at subparagraph c, 
which Jamaica considers to be valid.  
6. TN/RL/GEN/67 [JOB(05)/228] – Proposal on  Affiliated Parties – Paper from Brazil 
 
 Contrary to the proposal on 6.1.4 in TN/R L/GEN/72, Jamaica believes that the captioned 
proposal would lend clarity and predictability to th e Agreement as indicated by Brazil.  However, 
Jamaica questions whether this proposal takes into  consideration forms of affiliation other than 
control which are noted in footnote 11 to Article 4.1 at subparagraph c, which Jamaica considers to be 
valid.  7. TN/RL/GEN/62[JOB(05)185] – Proposal on the Definition of Domestic Industry: 
Exclusion Standards – Communication from  the Separate Customs Territory  of 
Taiwan,  Penghu, Kinmen and Matsu 
 
 Jamaica notes that the proposed amendment le nds clarity and greater predictability to the 
decision to exclude firms from the domestic industry.   In Jamaica’s experien ce, foreign producers and 
exporters have hotly debated the issue of domes tic producers that also import.  However, it is 
particularly problematic to a small country with industries that may comprise a single firm, which may be the firm that is seeking a remedy for injury fr om dumping.  In such event, exclusion of such a 
firm because it also imports would be illogical.  Sp ecific criteria for exclusion may be beneficial.   
 
 Under the current formula, the exclusion of domestic producers from the scope of the 
domestic industry is not automatic.  The advantage of  what currently obtains in the absence of rigid 
rules for this factor is that the Investigating Authority can make an informed assessment of all 
conditions that may make it necessary to exclude or  include producers who have imported the dumped 
product.  For instance, even though a producer’s imports of dumped goods is relatively low compared to its total sales into the domestic market, an Investigating Authority may well find that the 
cumulative effect of all such imports have led to inju ry.  It is plausible that the authority may decide 
that it would not be appropriate to allow a domestic pr oducer to be a part of an application aimed at 
remedying a state of affairs to whic h its own actions have contributed. 
  Jamaica is strongly in favour of maintaini ng the current flexibility which exists in the 
Agreement and does not believe that greater predictability is of suffici ent value to compensate for the 
loss of flexibility which would result from the proposal.   TN/RL/W/198 
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  8. TN/RL/GEN/63[JOB(05)/186] – Proposal on the Disclosure of Essential Facts – Paper by 
Turkey  
 
 Jamaica has provided preliminary comments on this proposal as reflected in TN/RL/W/188 
and wishes to provide further comments in this regard.  
 
 Jamaica agrees that essential facts should be discl osed to the parties to an investigation prior 
to a decision to impose definitive duties and in sufficient time for parties to comment.  Jamaica 
considers that the non-disclosure of essential facts is  a matter of practice, especially as it relates to 
non-disclosure of facts pertaining to the injury determ ination.  In terms of the disclosure of all the 
facts relevant to a final determin ation, Jamaica perceives a practical  problem of timing as information 
from questionnaires sent out after a preliminary determ ination may not all be before an investigating 
authority at the point when the Statement of Essentia l Facts is due.  Additionally, Jamaica notes that 
the details provided in the report pertaining to the Preliminary Determination may not be significantly 
different from the Statement, and thus may add nothing. 
 
 Additionally, Jamaica considers that 15 days w ould be adequate time for parties to respond.  
However, Members should be allowed flexibility especially when they operate under significantly 
shorter time frames than provided in the Agreement as Jamaica does.  
9. TN/RL/GEN/68[JOB(05)/231] – Proposals on Article 5.8 of the ADA – Paper by the 
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu     
 
 Jamaica is of the view that the proposed new footnote warrants further clarification and refinement.  Jamaica wishes to reserve on this matte r at this time and will comment more fully after it 
has had time to perform an additional review of the proposal. 
 
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