WORLD TRADE  
ORGANIZATION  TN/RL/GEN/87 
17 November 2005 
 (05-5430) 
Negotiating Group on Rules Original:   English 
  
FURTHER PROPOSAL ON ISSUES RELATING TO  
ARTICLE  6.9 OF THE ADA 
 
Paper from Norway
 
 
  The following communication, dated 16 November 2005, is being circulated at the request of the Delegation of Norway.  
 The submitting delegation has requested that th is paper, which was submitted to the Rules 
Negotiating Group as an informal document (JOB(05)/ 290), also be circulated as a formal document. 
_______________ 
 
 
1. Introduction  
 Members had a preliminary discussion on the major aspects of the due process and 
transparency paper submitted by Norway in TN/RL/GEN/49 during the Rules-session of 
September 2005.  This was followed in Octobe r 2005 by an updated paper TN/RL/GEN/49/Add.1, 
that included proposed changes to aspects of Ar ticle 6 based on comments and proposed changes from 
other Members.  In the original paper TN/RL/GE N/49, Norway invited members to  further discuss 
how the rules in Article 6.9 on disclosure in the ADA could be improved.  In this paper, we propose a 
new text for Article 6.9 with an accompanying explanation.  
 
 The proposals for clarification and improvement  to the ADA set out in this paper do not 
represent a final position.  
 
2. Background on disclosure, Article 6.9 ADA 
 
 Article 6.9 currently provides that:   
 " The authorities shall, before a final determinati on is made, inform all interested parties of the 
essential facts under consideration which form the basis for the decision whether to apply 
definitive measures.  Such disclosure should take  place in sufficient time for the parties to 
defend their interests."  
 Disclosure under Article 6.9 is currently not subject to any explicit procedural requirements in respect 
of timing or content.  There are also different view s on how this paragraph is to be interpreted.   
  In its submission TN/RL/GEN/63, Turkey stated that the term “facts” in this provision covers 
all facts relating to the three core parameters of an investigation, i.e. the determinations of dumping, 
injury and the causal link.  Turkey  emphasized that the authorities shoul d inform the interested parties 
of the factual considerations that form the basis for a decision.  Norway agrees that the elements 
highlighted by Turkey are important.  Taking th ese elements into account, Norway proposes further 
changes to Article 6.9 of the Antidumping Agreement  in order to clarify and improve the rules on 
disclosure.  TN/RL/GEN/87 
Page 2  
 
  Norway’s proposal does not rely on any partic ular interpretation of the current text of 
Article 6.9.  Norway rather proposes to clarify the text of the disclosure requirements of Article 6.9 of the Antidumping Agreement .  The proposal seeks to enhance due process in preliminary and final 
determinations.  Furthermore, it seeks to ensure that  interested parties are given a full opportunity to 
defend their interests.  
 
 In this paper Norway proposes to include di sclosure of essential facts prior to the imposition 
of any provisional measures.  Secondly, Norway seeks to elaborate on the type and scope of essential 
facts and how the authorities have assessed them in  a disclosure.  Finally, Norway’s proposes  a 20-
day period for interested parties to comment, afte r the disclosure in order for them to defend their 
interest in accordance with Article 6.2. 
 
A. Disclosure of Essential Facts Prior to Imposition of Provisional Measures 
 
 As it currently provides, Article 6.9 contains  a disclosure requirement that is explicitly 
applicable only prior to the issuance of a fi nal antidumping determination.  Preliminary 
determinations ( i.e., determinations made in connection with the imposition of provisional measures) 
are not explicitly covered by the provision.  Norway submits that the due process rationale that requires disclosure in the context of final determinat ions applies equally to de terminations justifying 
the imposition of provisional measures.  These provi sional measures are just as disruptive to the trade 
of importers and foreign producers as final antidumping measures.  Moreover, they can remain in 
place for many months prior to the imposition of fi nal antidumping measures.  In the typical case, the 
provisional measures are simply the first stage in what becomes final antidumping determinations (although the amount of the duties can be different).     Norway sees no basis for such different due pr ocess requirements in these two closely-related 
phases of an anti-dumping investigation.  Norway proposes to rectify this imbalance by including 
preliminary determinations in the scope of Article 6.9 of the Antidumping Agreement . 
 
B. Clarification of Meaning of Essential Facts  
 
 The requirement to disclose essential facts in Article 6.9 exists to provide interested parties the opportunity to “defend their interests.”  Disclosur e allows an interested pa rty to see what evidence 
the authorities  have examined, what information it will rely on and what information it will reject.  
Having access to these facts allows an interested pa rty to address the factual basis of the authorities’ 
likely decision.  In this respect, WTO jurisprude nce has established that authorities are required to 
“provide a reasoned and adequate explanation as to  (i) how the evidence on the record supported its 
factual findings; and (ii) how those factual fi ndings supported the overall subsidy determination.”
1  
Furthermore, this jurisprudence requires investiga ting authorities to address alternative explanations 
that could reasonably be drawn from the essential facts.2   
  The requirement to provide a reasoned and ade quate explanation is directly related to the 
scope of the disclosure requirement of Article 6.9.  Disclosure of essential facts must be at a time 
prior to a determination and in sufficient time to allow interested parties to fully defend their interests.  
The phrase “defend their interests” in Article 6.9 indicat es that an interested party needs to appreciate 
how the authorities will likely use the facts and the li kely outcome of the determination.  Therefore, 
the scope of the disclosure must reflect the scope of the explanation requirement that applies in a 
                                                     
 
1 Appellate Body Report, US – DRAMS , para. 186;  Appellate Body Report, US – Lamb , para. 106.  
The particular findings were made in the context of the SCM Agreement  and the Safeguards Agreement 
respectively.  The same reasoning applies under the Antidumping Agreement . 
2 Ibid.  TN/RL/GEN/87 
 Page 3 
 
 
 determination.  The proposal seeks to confirm th e above mentioned requirements in the context of 
disclosure.  
 
 Norway therefore proposes to specify that “essen tial facts” in the sense of Article 6.9 of the 
Antidumping Agreement  shall encompass “all facts in the record  of the investigation that tend to 
support or cast doubt upon the authorities' determinat ions of dumping, injury and causation.”  Second, 
the investigating authority would be required to specifically identify all facts it will rely upon, 
irrespective of how it will rely on them.  Also, the authorities must disclose information that is 
contrary to its likely determination.  Finally, Norw ay proposes to clarify that disclosure also includes  
the authorities’ assessment of these facts.  This c onfirms the interpretation pa nels already have given 
to this provision.  In Argentina – Poultry (AD)  the panel has found that Article 6.9 requires “positive 
action” and that “mere access to the file is not sufficient”.3  The panel in Guatemala – Cement II  also 
found that mere access to the file is not suffici ent unless the file contains a disclosure document 
specifically prepared by the authorities wh ich clearly identifies the “essential facts”. 4   
 
C. 20-Day Period to File Comments on the disclosure 
 
 Norway suggests that a 20-day period for co mments on the information disclosed according 
to Article 6.9 is both necessary and reasonable.  Such  a period also maintains a reasonable balance of 
conflicting interests.  Given the volume of essential f acts that exist in many investigations, it would 
normally take all interested parties at least this much time to digest the facts and assessments, and 
prepare comments and suggestions on how the inves tigating authorities should address the facts.  A 
shorter period will deny interested parties the ef fective right to fully defend their interests in 
accordance with Article 6.2.  However, a much l onger period could interfere with the rights of the 
domestic industry that may be faced with dumped im ports.  The comments shall be taken into account 
by the authorities when issuing their determinati on, and shall be addressed in the reports published 
according to paragraph 2 of Article 12.  
 
3. Conclusion 
 
 Norway is aware of the fact that Members’ pr actices with regard to disclosure of information 
prior to an antidumping determination vary.  Th e proposal takes these differences into account.  It 
preserves the Members’ possibility maintain their own disclosure procedures while establishing some 
minimum requirements for disclosure of information.     The Annex to this document contains  a proposal on Article 6.9 of the Antidumping Agreement  
that takes these conceptual elements onboard. 
                                                     
 
3 Panel report, Argentina – Poultry (AD) , para. 7.220. 
4 Panel report, Guatemala – Cement , para. 8.230. TN/RL/GEN/87 
Page 4  
 
 ANNEX 
 
Article 6.9 - Disclosure 
 
 
6.9 The authorities shall, before a preliminary or
 final determination is ma de, inform all interested 
parties of the essential facts under consideration, including how the authorities will assess these facts 
which form the basis for the  a decision whether to apply provisional or  definitive measures1.  Such 
disclosure shall  should  take place in sufficient time for the parties  to defend their interests2. 
 
__________ 
 
 
                                                      
1 The disclosure of essential facts requires the specific identification by the authorities of all facts in the 
record of the investigation that  tend to support or cas t doubt upon the determinations of dumping, injury and 
causation that will form the basis for a decision.  
2 The interested parties shall have  full opportunity to defend their interests in accordance with 
Article 6.2, and shall be allowed no less than [20] days to comment.