. /.   WORLD TRADE  
ORGANIZATION  TN/RL/GEN/157 
20 May 2008 
 (08-2322) 
Negotiating Group on Rules Original:   English 
  
 
PROPOSAL TO DELETE THE RECASTING OF ANTI-DUMPING  
DUTIES AS "SECURITY" 
 
Communication from Thailand and Vietnam
 
 
 
 The following communication, dated 16 May 2008, is being circulated at the request of the Delegations of Thailand and Vietnam.  
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I. INTRODUCTION 
1. The Delegations of Thailand and Vietnam pr esent this Working Document concerning the 
recasting of anti-dumping duties collect ed at the time of entry of goods  subject to definitive measures 
as "security" in the Rules Chair's text (TN/RL/W/ 213).  In our view, this recasting constitutes a 
radical departure from the current Anti-Dumping Agreement  and Members' practices because it means 
anti-dumping duties would no longer be capped at th e previously-determined margin of dumping.  
Accordingly, the proponents of this paper propose to  delete the use of and references to the term 
"security" in revised Articles 9.3 and 11.2 (footnote 49) in TN/RL/W/213.    2. We hope this paper will contribute to the ongoing balancing process, and we note that the 
views expressed therein are without prejudice to th e views we may each have on other parts of the 
text.  We also reserve the right to modify or co-sponsor  this paper with other Members at a later stage.   
 
II. DISCUSSION 
3. We recall that during the Negotiating Group discussions in March 2008, Members questioned 
the implications of the insertion of the term "secur ity" into Article 9.3 and footnote 49 to Article 11.2 
of TN/RL/W/213, including whether monies collect ed after importation could be described as 
"security" in said Articles.   
 
4. The ensuing debate did not provide convi ncing answers or address the consequences 
stemming from the recasting of anti-dumping duties as " security".  For example, reference was made 
to the existing, benign use of the term "security" in  Articles 7.2 and 10.3 of the current text of the 
Anti-Dumping Agreement .  However, while the reference to "security" in those Articles correctly 
pertains exclusively to provisional
 measures, the proposed recasting of anti-dumping duties as 
security in Articles 9.3 and 11.2 of TN/RL/W/213 refers to the period covered by definitive  anti-
dumping measures.    5. The implications of recasting definitive anti- dumping duties as security are troubling:  if anti-
dumping monies collected at the time of importation are no longer considered "duties" but are simply 
"security", they would not be subject to the re quirement set out in Articles 9.1, 9.2, and the chapeau TN/RL/GEN/157 
Page 2  
 
  of Article 9.3 of the Anti-Dumping Agreement that the amount of such duties may not exceed the 
margin of dumping established in  accordance with Article 2 of the Agreement .   
 6. This is a radical departure from the scope of  current permissible remedies against dumping.  
The purpose of AD measures is to eliminate the injurious effects of dumped imports on the domestic 
industry in the importing country.  Therefore, the  Anti-Dumping Agreement  limits the amount of anti-
dumping duties to the margin of dumping, and also a llows for the collection of even a lesser amount.  
Excessive measures that over-burden exporters are not justified and are contrary to this underlying 
principle of the Anti-Dumping Agreement .  All WTO Members adhere to this principle and thus 
currently cap measures imposed at the time of entry at the previously-determined margin of dumping.  
Recasting definitive anti-dumping duties as "security ", on the other hand, would allow Members to 
exceed that amount.  In this context, we note that TN/RL/W/213 provides no guidance on how such 
"security" would be regulated.    7. This is completely contrary to the purpose of GATT Article VI and the Anti-Dumping 
Agreement , which since 1947 has been understood to be  to limit action against dumping to duties 
equal to the amount of injurious dumping.  All three actions against dumping currently permissible 
under GATT Article VI and the Anti-Dumping Agreement (provisional measures, price undertakings, 
and definitive duties) are limited to offsetting th e margin of dumping.  Members have neither 
negotiated nor agreed to a departure from this  understanding that would permit action against 
dumping that would not be limited to the amount of a previously-determined margin of dumping.  We 
are therefore of the view that the recasting of anti-dumping duties as "security" in Article 9.3 and 
footnote 49 to Article 11.2 in TN/RL/W/213 constitutes a radical change to the Anti-Dumping 
Agreement .   
 
8. For these reasons, we propose the deletion of th e term "security" from revised Article 9.3 and 
the deletion of footnote 49 to Article 11.2 in TN/RL/W/213.    
Proposed Amendments to TN/RL/W/213
 
 
Article 9.3:   
 
9.3  The amount of the anti-dumping duty sha ll not exceed the margin of dumping as established 
under Article 2.  In this regard, each Member shall establish procedures [fn39] to ensure a 
prompt refund, upon request, where the duty or security  collected exceeds the actual margin of 
dumping [fn40].  In this respect, th e following subparagraphs shall apply.    
 
Footnote 49 to Article 11.2:    
11.2  The authorities shall review the need for the continued imposition of the duty, or for a 
modification of the level of the duty [fn49] , where warranted, . . . . 
 
49 Or in the case of a retrospective system, o f the level of any security collected.  Where the anti -
dumping duty imposed takes the form of a prospec tive normal value, this requirement relates to 
the modification of the prospective normal value.  
 
 
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