WORLD TRADE  
ORGANIZATION  TN/RL/W/188 
10 October 2005 
 (05-4569) 
Negotiating Group on Rules Original:   English 
  
 
COMMENTS BY JAMAICA ON PROPOSALS TO THE  
NEGOTIATING GROUP ON RULES (AD AND SCM,  
INCLUDING FISHERIES SUBS IDIES) DISCUSSED AT 
THE GROUP’S MEETING ON 26-30 SEPTEMBER 2005 
  
 The following communication, dated 3 October 2005, is being circulated at the request of the Delegation of Jamaica.  
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   Jamaica has, as far as possible, within the ti me constraints, attempted to provide comments 
where it has been deemed appropriate and reserves the right to modify or supplement the comments 
and proposals set forth below.   
 
1. PROPOSAL ON PUBLIC INTEREST TN/RL/GEN/53 
 Jamaica is of the view that the importation of  a public interest requirement merits further 
discussion.  By way of initial comment on the propo sal we wish to point out that incorporating a 
public interest component into the ADA should not automatically translate into requiring the 
Investigating Authority to refrain from imposing an  anti-dumping duty where the enquiry reveals that 
the imposition of the measure is not in accordance with the national economic interest.  This is 
because there may well other substantial countervailing considerations that speak in favour of the 
imposition of the anti-dumping duty.   An example of such a consideration is inherent  in the scope to be accorded to the notion of 
“national economic interest” as revealed by a contextu al analysis of the proposal.  The proposal states 
explicitly, that it does not seek to prescribe what is or is not in the importing Member’s economic 
interest, but given that it contemplates that ba sed upon the result of the public interest enquiry, 
national investigating authorities, should consider matters such as the state of competition in the 
market post duty imposition and  implications for cons umer choice, it becomes apparent that what is 
being advocated is a economic interest test rooted in  concerns of what is best for competition  and 
consumer welfare in the market as a whole.  If this  assessment of the proposal is correct, then it is 
evident that the overall health and fortunes of  the domestic industry becomes a less important 
consideration, notwithstanding that the anti-dumping investigation was  initiated with a  view to 
enquiring whether this industry was in fact in need of protection. 
 
 In this scenario, if the proposal is adopted, th e Investigating Authority would be obliged to 
refrain from imposing an anti-dumping duty if the outc ome of the public interest enquiry is that the 
duty would not accord with consumer welfare, notwith standing that  the domestic industry  has been 
and continues to be injured by the dumped imports.  TN/RL/W/188 
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  To this end, Jamaica recommends that with resp ect to the text of the proposed new article of 
the ADA, that consideration be given to an altern ate proposal that if the importing member concludes 
that it is not in the economic interest to impo se a definitive antidumping duty and there are no other 
substantial countervailing cons iderations, then the measure shall not be imposed. 
 2. PROPOSAL ON CAUSATION TN/RL/GEN/59 
 Jamaica maintains its support of the need fo r greater clarity on the issue of causation and 
supports the proposal that clarification would assist the Investigating Authority (IA) in the conduct of 
investigations. Jamaica believes that Member s should discuss the potential methodologies and 
difficulties that arise in trying to meet the non-attrib ution requirements, having regard to the technical 
and other resources constraints of some Members. This  proposal raises important concerns.  However,  
caution should be exercised when seeking to affirm  matters not now included in the Agreement. 
Further study, research and discussion of the issues related to causation is warranted.   
 
3. PROPOSAL ON CUMULATION TN/RL/GEN/51 
 Jamaica agrees that some clarification is required as to the exact nexus between Articles 3.3 
and 5.8 of the ADA and is supportive of the propo sal in this regard. Jamaica also welcomes the 
proposal to lend clarity as to what factors must be  employed in an examination as to whether the 
conditions of competition between imported products and the domestically produced product are such 
as to warrant cumulation.  
 Jamaica notes that the suggested amendment to Article 3.3 provides that cumulation would be 
mandated once the following matt ers have been established: 
 
• The imports from each country are not de minimis  or negligible as determined in accordance 
with article 5.8 
 
• The conditions of competition are such as to warrant cumulation. 
 This position is a radical departure from Article 3.3 which makes the decision o determine whether 
cumulation will be effected, a discretionary one, even where the above requirements have been 
fulfilled.  This aspect of article 3.3 was obvi ously included in the ADA in recognition that 
Investigating Authorities should retain a broad discr etion in determining whether in light of all 
relevant circumstances, cumulation is appropriate.  
 
4. PROPOSAL ON ISSUES RELATING TO EVIDENCE, PUBLIC NOTICE AND 
EXPLANATION OF THE DETERMINATIONS UNDER ARTICLES 6 AND 12 OF THE ADA TN/RL/GEN/49 
 Jamaica welcomes the proposal and is also of th e view that Members must continue to foster 
the discussion with respect to enhancing the pro cedural fairness aspects of the ADA.  With one 
immediate exception, Jamaica is in support of the comments made by Norway with reference to the 
procedural aspects enshrined in Articles 6 and 12 but  reserves the right to comment separately on the 
proposed draft amendments to the text of the Agreement.  
 The exception referred to, is with respect to the proposal to have a general increase of the 
time limit for responding to questionnaires to 45 days . This aspect of the proposal appears to stem 
from the recognition that small firms may not have sufficient resources to enable them to complete 
and return the questionnaires within the period of thirty days currently provided for in the agreement.    
  TN/RL/W/188 
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  The Agreement must reflect a balance between the need to have the investigation progress in 
a timely manner and the need to ensure that firm s which are truly in need of more time to present 
requested information are able to get this time.   Jamaica therefore proposes that the thirty da y response period be maintained, but that the 
Investigating Authorities be allowed to grant extens ions of up to 15 days in appropriate cases.  
 
5. PROPOSAL ON LESSER DUTY TN/RL/GEN/58 
 As indicated in previous comments Jamaica be lieves that application of the lesser duty rule 
should be discretionary.  Additionally, Jamaica has indicated that while it currently employs the Non-
injurious price methodology to calculate injury marg ins there are conceptual and practical difficulties 
with the methodology.  As a result Jamaica supports further discussion of potential methodologies that 
may more accurately satisfy the requirements of th e ADA.  However, given the conceptual difficulties 
between threat of injury findings and current in jury findings, as well as the differences between the 
injury factors, as highlighted by the United States, such a method may not exist.  As a result a more 
useful exercise may to be focus on refining a gi ven methodology, such as the non-injurious price, 
taking into consideration that while it may not be th e most accurate it could be most practical method.  
In particular in refining any chosen method speci al care should be given that the method does not 
create an undue administrative burden on investigati ng authorities, nor does it impose additional costs 
on all parties in the investigation.  6. PROPOSAL ON THE DISCLOSURE OF  ESSENTIAL FACTS TN/RL/GEN/63  
 Jamaica wishes to caution that in giving consid eration to strengthening the procedural fairness 
aspects of the Anti-Dumping Agreement, due regard must be given to the need to ensure that 
enhancing the goal of procedural fairness is not  at the expense of Administrative Efficiency.  
 
 In this regard, Jamaica is in support of the propo sal to the extent that it treats with the need to 
provide for a specific period within which comments must be received.  It however does not agree 
with that aspect of the proposal which would specify  the content of the notification as set out in the 
suggested draft text.  This suggested text, mirro rs Article 12.2.1 of the Anti-Dumping agreement 
which treats with the content of a notice advising of provisional measures.  In effect therefore, the proposal aims to obligate national investigating authorities to publish a full decision of a provisional 
nature at a time when the authorities should be preparing a final decision. 
  This would have implications for the timely completion of investigations, given that the 
Investigating Authority would be obliged to consid er detailed arguments with respect to its factual 
and legal assessment as denoted in the statement of essen tial facts.  The proposal also has elements of 
a redundancy, given that all interested parties would have received the opportunity to advance 
comments on the facts and legal analysis employed by  the Investigating Authority in the wake of it 
having made an affirmative preliminary determina tion and a decision to impose provisional measures.  
Further, the provision for judicial review of a final determination ensures that the rights of interested 
parties are vindicated in the event of the Investig ating Authority having employed an incorrect legal 
methodology. 
 
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