WORLD TRADE  
ORGANIZATION   
G/ADP/AHG/W/195 
7 October 2011 
 (11-4878) 
Committee on Anti-Dumping Practices 
Working Group on Implementation Original:   English 
 
 
 
ARTICLE 5.3 – ACCURACY AND ADEQUACY 
 
Paper by New Zealand 
 
 
 The following communication, dated 5 October 2011, is being circulated at the request of the Delegation of New Zealand.  
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Introduction 
 
1. Further to the agreement reached in th e Working Group on Implementation to examine 
additional topics for discussion, as noted in doc ument G/ADP/W/477, New Zealand is pleased to 
submit the following paper describing how it implements  the accuracy and adequacy test set forth in 
Article 5.3 of the Anti-Dumping Agreement. This  paper follows from a paper on the same topic 
presented by Egypt1 at the October 2010 meeting of the Working Group on Implementation and a 
similar paper presented by Turkey2 presented at the May 2011 meeting of the Working Group. Since 
that meeting South Africa3 and Colombia4 have also presented papers on the issue.  New Zealand 
would like to thank these Members for their papers and a number of other Members who have shared 
their experiences on the issue at the Working Group meetings. 
 
Assessment of an Application for Anti-Dumping Measures 
 
Article 5 of the Anti-Dumping Agreement 
 
2. Article 5 of the Anti-Dumping Agreement c ontains rules on how Members must decide, on 
the basis of information and evidence provide d by a domestic industry, whether a dumping 
investigation is warranted.  The requirements for an  application are detailed in Article 5.2 and are 
designed to ensure that an investigation is not initiated on the basis of simple assertion or 
unsubstantiated evidence, while Article 5.3 provides that the investigating authorities must examine 
the accuracy and adequacy of the evidence provided in  an application to determine whether or not an 
investigation is justified.  Article  5.5 refers to the "receipt of a pr operly documented application" in 
the context of notifications to the government of the exporting Member.  In effect, the provisions of 
Article 5 ensure that a balance is met between the need for a Member to act quickly to initiate an 
investigation, where warranted, but not to do  so on the basis of frivolous accusations or 
unsubstantiated information. 
 
                                                      
1 G/ADP/AHG/W/187. 
2 G/ADP/AHG/W/188.  
3 G/ADP/AHG/W/189. 
4 G/ADP/AHG/W/192.  G/ADP/AHG/W/195 
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  3.   In terms of the evidence and information needed in an application, Article 5.2 states: 
 
 An application under paragraph 1 shall include evidence of (a) dumping, (b) injury 
within the meaning of Article VI of GATT 1994 as interpreted by this Agreement 
and (c) a causal link between the dumped imports and the alleged injury.  Simple 
assertion, unsubstantiated by relevant eviden ce, cannot be considered sufficient to 
meet the requirements of this paragra ph. The application shall contain such 
information as is reasonably available to the applicant on the following: …"  
 
4. Article 5.2 notes first and foremost that an  application must include evidence of dumping, 
injury and a causal link between the dumped imports and the alleged injury and that the application 
must be substantiated by relevant evidence.  Artic le 5.2 then lays out the specific requirements which 
applications must meet, which can be grouped into four main categories:  
(i) The identity of the applicant and a descrip tion of the volume and value of domestic 
production of the like product by the applicant; 
 
(ii) The characteristics of the allegedly dumped  product and the country of origin, and the 
names of the exporters and importers;  
(iii) Information supporting the allegations of dumping; 
 
(iv) Information supporting the allegations of injury and causality. 
 5.  In terms of analysing the evidence necessary fo r the initiation of an investigation, Article 5.3 
of the Anti-Dumping Agreement states: 
 
 The authorities shall examine the accuracy and adequacy of the evidence provided in 
the application to determine whether ther e is sufficient evidence to justify the 
initiation of an investigation. 
 
6. While Article 5.3 notes that the authorities sh all examine the accuracy and adequacy of the 
evidence provided, it does not define or describe the level of adequacy and accuracy that is needed.  
However, this does not mean that authorities can simply accept the evidence submitted at face value. 
If there are clear indications that the information is inaccurate, unreliable or not reflective of the actual 
situation, it should not be accepted.  Furthermore, if a prima facie  examination of the information 
raises substantial questions, for example, on th e comparability between the export price and the 
normal value, then the authorities should seek further information or explanations and if the further 
information or explanations are not forthcoming, draw appropriate conclusions regarding the accuracy 
and adequacy of the information.  As Turkey noted in its paper, WTO panels have held that the failure 
of an investigating authority to carry out such an assessment is a violation of its obligations under 
Article 5.3 of the Anti-Dumping Agreement.
5  As also noted by Turkey in its paper, prior to initiation 
                                                      
5 These DSU decisions make it clear that investigating authorities must establish the reliability and 
authenticity of the information provided in the application, including gathering information themselves in order 
to meet the standard of sufficient ev idence. In each case, the panel looked at the issue from the perspective of 
how a panel would consider the issue under Article 17.6(i) of the Anti-Dumping Agreement. In other words the panel considered whether an unbias ed and objective investigating aut hority, taking into account the accuracy 
and adequacy of the facts before it, could properly have determined that there was sufficient evidence to justify 
the initiation of an investigation (See Mexico – Corn Syrup , paras. 7.91 – 7.110; Guatemala – Cement II , 
paras. 8.29 - 8.58; Argentina - Anti-dumping duties on Poultry , paras. 7.60 ff.; Mexico – Anti-dumping Duties on 
Steel Pipes and Tubes from Guatemala , para. 7.26).  G/ADP/AHG/W/195 
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  investigating authorities should also, to the extent possible, check the information provided in the 
application from independent sources to ensure its authenticity and reliability. 
 7. Nonetheless, while the evidence provided in an  application must be sufficient for the purpose 
of initiation, it is unlikely to be of the quality a nd standard of evidence required for a preliminary and 
final finding once an investigation has been initiated.  For example, while Article 5.2 requires that the 
information included in an application must be su ch information as is reasonably available to the 
applicant, the evidence of injury in an application need not cover all injury factors and indices listed 
in Article 3.4 of the Anti-Dumping Agreement.  Anot her point to note is that during an investigation 
investigating authorities do not limit themselves to examining the evidence provided in the 
application. Post initiation they are able to proac tively investigate by seeking further information from 
interested parties and by verifying information as appropriate, including on-the-spot investigations. 
  
 
Point for discussion: 
 Article 5.2 requires an application to contain in formation "reasonably available to the applicant" 
which suggests that in examining the "accuracy  and adequacy" of the evidence provided under 
Article 5.3 and whether the application can be considered "properly documented" in terms of 
Article 5.5, the investigating authority must j udge whether the applicant has submitted information 
which is "reasonably available" to it, and if not, wh ether a reasonable effort has been made to obtain 
it.  
 
New Zealand is interested in how Members consider  this requirement reconciles with the need, in 
Article 5.3, for authorities to ensure that there is "sufficient evidence" to ju stify the initiation of an 
investigation. What problems and issues have Members experienced in reconciling these two 
possibly competing requirements and what practical  solutions have they adopted to resolve any 
ambiguity? 
 
 
 
New Zealand's Approach to Assessing an Application for Anti-Dumping Measures 
 
New Zealand's Legal Framework 
 8. The New Zealand Dumping and Countervailing Duties Act 1988 states the following in respect of initiating a dumping investigation:  
Section 10:  Initiation and subsequent investigation 
 
(1)  Subject to this section, on receipt of a properly documented application made by or on 
behalf of New Zealand producers of like goods and on being satisfied that sufficient 
evidence has been provided that: 
 
 (a)  goods imported or intended to be im ported into New Zealand are being dumped 
or subsidised; and 
 
(b)  by reason thereof material injury to an  industry has been or is being caused or is 
threatened or the establishment of an i ndustry has been or is being materially 
retarded: 
 G/ADP/AHG/W/195 
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    the Chief Executive may initiate an inv estigation to determine both the existence 
and the effect of any alleged dumpi ng or subsidisation of any goods. 
 
(2)  For the purposes of this section, a pr operly documented application must include: 
 
(a) evidence of: 
 
(i)  dumping or subsidisation, as the case may be; and 
 
(ii)  injury to the industry; and 
 
(iii)  a causal link between the allege d dumping or subsidisation and the 
alleged injury; and 
 
(b)  such information as is reasonably ava ilable to the applicant in relation to the 
following: 
 
(i)  the names of the New Zealand producers making the application; 
 
(ii)  the names of all other known New Zealand producers of like goods; 
 
(iii)  a description of the volume and value of the domestic production of like 
goods, both by the producers referred to in subparagraph (i) and by the 
producers referred to in subparagraph (ii); 
 
(iv)  a complete description of the allegedly dumped or subsidised goods; 
 
(v)  the names of the countries of origin or export of the allegedly dumped or 
subsidised goods; 
 
(vi)  the name of each known exporter or overseas producer of allegedly 
dumped or subsidised goods; 
 
(vii)  the names of persons known to  be importing the allegedly dumped or 
subsidised goods; 
 
(viii)  in the case of subsidised goods, the existence, amount, and nature of the 
subsidy; 
 
(ix)  normal values of the allegedly dumped goods when destined for 
consumption in the domestic markets of  the countries of origin or export 
(or, where appropriate, either the prices at which the goods are sold from 
the countries of origin for export to third countries, or the prices based on 
a constructed value); 
 
(x)  the export prices of the allegedly dumped or subsidised goods (or, where 
appropriate, the prices at which the goods are first resold in arm's length 
transactions in New Zealand); 
 
(xi)  the import volumes into New Zealand of the allegedly dumped or 
subsidised goods; 
  G/ADP/AHG/W/195 
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  (xii)  the effects that the imports of the allegedly dumped or subsidised goods 
have had, or will have, on prices of like goods in New Zealand; 
 
(xiii)  the consequent impact of those imports on the industry; 
 
(xiv)  relevant factors affecting the industry that may have a bearing on the 
information required under subpa ragraphs (xii) and (xiii). 
 
New Zealand's Practice under Articles 5.2 and 5.3  
 
9. Once an application for anti-dumping measures h as been received, it will be checked to ensure 
it is a properly documented application. In this resp ect, the New Zealand authorities (the Ministry of 
Economic Development) will examine the applicati on to ensure it contains information which is 
reasonably available as per the factors listed in sec tion 10(2)(b) of the Act. A short Acceptance Report 
will be compiled noting the information the applican t has provided in respect of each of the factors 
listed.  If the application contains information on each of these factors it will normally be considered 
"properly documented".  10. The applicant will be advised, normally within 5 working days of the Ministry's receipt of the application, whether it has met the requirements set out under section 10(2)(b) of the Act and is 
therefore considered "properly documented". The Mi nistry will also notify the government of the 
exporting Member concerned in accordance with Artic le 5.5 of the Anti-Dumping Agreement.  If an 
application is not considered "p roperly documented", the applicant will be contacted and told where 
the application is deficient.  11. If an application is considered "properly docum ented", the evidence in th e application is then 
checked to establish if there is suffici ent evidence to justify initiating an i nvestigation. It is at this stage 
that the Ministry will examine the accuracy and adequ acy of the evidence provided.  During this stage 
the applicant may be asked to clarify the informat ion provided.  The Ministry will also take into 
account other information available to it (e.g. official  import statistics) in order to check the accuracy 
and adequacy of the information provided.  
12. The Ministry has no hard and fast rule in te rms of the type of export price and normal value 
evidence it will accept as sufficien t evidence for initiation purposes. In terms of export prices, the 
Ministry will request the applicant to provide evidence such as invoices from the foreign exporter to 
the New Zealand importer, quotes by the exporter fo r selling the product to a New Zealand buyer, or 
an average per unit price calculated from Statistic s NZ import statistics if the product is closely 
aligned with the tariff item. It will also expect ex port-related costs to be provided and itemised (such 
as overseas freight and insurance, port clearance costs in the country of export, and inland freight from factory to port), an explanation given of how they were calculated, and to the extent possible 
evidence provided to support them (e.g. invoices, quotes).  13. Similar to Egypt, Turkey and South Africa, with regard to normal values, the Ministry will 
request the applicant to provide ev idence such as domestic invoices, price lists and quotes.  It will also 
expect the applicant to provide information on any fa ctors that it considers affect a fair comparison of 
the price of the goods exported to New Zealand wi th the goods sold on the domestic market in the 
country of export and, to the extent possible, ev idence of these factors. These differences may relate 
to differences in the quantities sold, physical differe nces, differences in credit terms, differences in 
taxation and differences in the level of trade. 
 14. In terms of injury information, the Ministry will request the applicant to illustrate the impact, 
on its financial performance, of the allegedly dumped  goods. In particular the applicant is asked to 
provide information on the economic factors and indices referred to in Article 3.4 of the Anti-G/ADP/AHG/W/195 
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  Dumping Agreement including sales volume and revenue and profits. The applicant will also be asked 
to provide information on the volume of imports of the allegedly dumped goods. This information 
will be requested for the period over which the indu stry has alleged it has suffered injury from the 
dumping, and for at least one year prior to the onset  of injury.  The Ministry will also request the 
applicant to provide supporting evidence of price undercutting, price depression and price 
suppression, preferably in the form of average ex-factory selling prices per unit (net of discounts and 
rebates).  Supporting evidence, preferably in the form  of financial data showing average costs per unit 
relative to average selling prices per unit, should al so be provided. The Ministry does not conduct an 
industry visit prior to the initiation of an investig ation to verify the information submitted by the 
domestic industry.   
 
15. In terms of considering the sufficiency of the information, the Mini stry takes guidance from 
the 1988 New Zealand judicial review case of Kerry (NZ) Ltd v Taylor
6. In this case the Court 
determined that in order to initiate an investig ation, there must be evidence beyond a mere assertion 
and of a nature and extent that indicate a lik elihood of dumping and material injury, requiring 
investigation.  The Court also stated that th e application should be assessed with due scepticism, 
bearing in mind the commercial context, but emphasised  that the assessment is one of sufficiency of 
evidence, not of dumping and material injury.  16. When analysing the information contained in the application, a detailed Initiation Report will 
be compiled listing the type of information the app licant has provided in respect of each of the factors 
listed in section 10(2)(b) of the Act and to what extent it is considered sufficient for initiation 
purposes under section 10(1) of the Act.  If the in formation provided in the application satisfies the 
"sufficient evidence" test under section 10(1) of  the Act (and Article 5.3 of the Anti-Dumping 
Agreement), the Ministry will form ally initiate an investigation. 
 
 
 
Point for discussion:  
In practice, it is often difficult for applicants to meet the information requirements and standards 
set out under Articles 5.2 and 5.3.  This reflects the situation that many domestic industries do not 
always have a sufficient understanding of the pr ocess nor do they have the resources to put 
together an application. However, many of these problems could be avoided by investigating 
authorities discussing the content of an applicati on with the applicant before it is submitted. 
 In New Zealand, the Ministry offers advice on preparing an application for a dumping investigation prior to and after an application is submitted.  However, in order to ensure 
objectivity in both the pre-initiation and post-initiation stages of the investigation, the Ministry 
attempts to appoint a different officer as an inves tigator (post-initiation) to that who assisted the 
applicant in the pre-initiation stage of the process.   New Zealand is interested in hearing from Members what their practices are in this respect, and also the extent to which pre-initiation assistance  by investigating authorities has helped save time 
and resources in initiating investigations?  
 
 
 
                                                      
6 (1991) 2 PRNZ 393. While this decision was made under the Customs Act (which preceded the 
current Dumping and Countervailing Duties Act), the provis ions of both Acts are sufficiently similar for the 
Judge's comments to be applicable to the current Act.   G/ADP/AHG/W/195 
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  Summary 
 
17. The test to be met, when examining the accuracy and adequacy of  the evidence in an 
application, is to determine whether an unbiased and objective investigating authority would have 
determined that there was sufficien t evidence to justify the initiation of an investigation. In other 
words, when the Article 5.3 examination is conducte d, authorities must ensure that all the supporting 
information used as the basis for the decision to initia te an investigation is accurate and substantiated 
by relevant evidence, whether submitted by the ap plicant or acquired by the authorities themselves. 
   
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