WORLD TRADE  
ORGANIZATION  TN/RL/GEN/75 
17 October 2005 
 
 (05-4731) 
Negotiating Group on Rules Original:   English 
  
 
 
SUBMISSION ON ISSUES RELATING TO THE INITIATION1 
 
Communication from Chile  
 
  The following communication, dated 13 October 2005, is being circulated at the request of the Delegation of Chile.  
 The submitting delegation has requested that th is paper, which was submitted to the Rules 
Negotiating Group as an informal document (JOB(05)/ 249), also be circulated as a formal document. 
 
_______________ 
  
 The sponsors of document TN/RL/GEN/23 identified the importance of the determination by 
the authorities to initiate an investigation as one of the most important stages in an anti-dumping 
proceeding due to the following considerations:  
 - It has significant chilling effects on trade.   
 - The initiation of an investigation involv es administrative and financial burdens on 
 exporters who will have to  respond to highly detailed qu estionnaires has a substantial 
negative impact on business activities.   
 - It also involves administrative costs for th e authorities that must bear with the burden 
 of reviewing and verifying those questionnaire responses.   
 
 Those effects are particularly negative when the initiation is poorly justified. 
  Furthermore, from Chile’s perspective, the current legal framework on initiation allows for 
several interpretations, thus creating uncertainty.  This prevents the full development of the potential 
of the investments in the export sector and an effici ent allocation of resources.  Indeed, grey areas or 
insufficient requirements affect export develo pment even in the absence of anti-dumping 
investigations because uncertainty affects expecta tions, particularly for exporters from developing 
countries which have to deal with a permanent thr eat of a poorly justified anti-dumping investigation, 
should they intend to increase their exports to certain destinations.  
 In that context we propose to modify several provisions contained in article 5.  The main 
proposals are summarised below:   (i) Paragraph 5.2:  To improve the ev idential requirements for an application; 
                                                     
 
1 The proposal contained in this document does not represent a final position and may be subject to 
further addition and/or modification in the course of the negotiations.  Other provisions of the Anti-Dumping 
Agreement that may be affected by the proposal may be examined in the later stages of the negotiations when 
Members have a more comprehensive picture of the amended Agreement. TN/RL/GEN/75 
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 (ii) Paragraph 5.3:  Authorities shall re ject an application which does not contain 
sufficient evidence; 
 
(iii) Paragraph 5.4:  To ensure that an application receives substantial support from the 
domestic industry; 
 
(iv) Paragraph 5.5 and 5.6:  To establish a m echanism of consultation with the interested 
parties, prior to the initiation of an investigation 
 (v) Paragraph 5.10:  To change the denominator of the ratio for the calculation of 
negligibility and to eliminate the current cumulation mechanism.  
  (vi) Paragraph 5.12:  To establish a 12 mont hs period for the period of  investigation. 
  (vii) Paragraph 5.14:  To prohibit back to back investigations.    TN/RL/GEN/75 
 Page 3 
 
 
 Article 5 
 
Initiation and Subsequent Investigation 
 
5.1 Except as provided for in paragraph 6  8, an investigation to determine the existence, degree 
and effect of any alleged dumping shall be initiated upon a written app lication by or on behalf of the 
domestic industry.  5.2 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 evidence, 
cannot be considered sufficient to meet the require ments of this paragraph.  The application shall 
contain such information as is reasonably available to the applicant on
 the following information2: 
  (i) the identity of the applicant,
 and  a description of the volume and value of the 
domestic production of the like product by the applicant.  and a list of all known 
domestic producers of the like product;  
  (ii)
 Where a written application is made on behalf of the domestic industry, the 
application shall identify the industry on beha lf of which the application is made by a 
list of all known domestic producers of the like product (or associations of domestic 
producers of the like product), indicating individual producers who are known to 
support the application,  and, to the extent possible,  a description of the volume and 
value of domestic production of the like product accounted for by such producers3; 
  (ii)
(iii) a complete description4 of the allegedly dumped product, the names of the country or 
countries of origin or export in question, the identity of each known exporter or 
foreign producer and a list of known pers ons importing the product in question; 
  (iii)
(iv) information on prices at which the product in question is sold when destined for 
consumption in the domestic markets of the country or countries of origin or export 
(or, where appropriate, information on the pr ices at which the product is sold from the 
country or countries or origin or export to a third country or countries, or on the 
constructed value of the product) and information on export prices or, where 
appropriate, on the prices at which the product is first resold to an independent buyer 
in the territory of the importing Member5; 
 
 (iv) (v) information and a reasoned explanation  on the evolution of the volume of the 
allegedly dumped imports, in absolute terms and relative to consumption and 
production in the importing country;   the effect of these imports on prices of the like 
product in the domestic market, including tho se indicated in paragraph 2 of Article 3;    
and the consequent impact of the allegedly dumped  imports on the domestic industry, 
as demonstrated by relevant factors and indices having a bearing on the state of the 
                                                      
2 In the case that the applicant claims that some of  the information requirements listed in this paragraph 
is unavailable, a complete description of the efforts made by the applicant in order to obtain such information 
shall be provided.  
3 In the case of associations of domestic producers, application shall list those producers who expressly 
support the petition and the volume and value of the like product by each of them.  
4 The description must refer to the physical characteristics of the produc t.  It must also indicate the HS 
Code corresponding to the import product and is this HS Code covers another type of product.  
5 The information must indicate, for each case, th e sources consulted and the methodology used to 
calculate the prices.  TN/RL/GEN/75 
Page 4  
 
 domestic industry, such as
 including all  those listed in paragraphs 2 and 4 of 
Article 3. 
  (vi) When the applicant alleges a threat of ma terial injury, the application shall contain all 
 elements stated on paragraph 7 of Article 3.  
 
5.3 The authorities shall examine the acc uracy and adequacy of the evidence6 provided in the 
application to determine whether there is su fficient evidence of dumping, injury and causality  to 
justify the initiation of an investigation.  The au thorities shall promptly reject the application and 
terminate all proceedings when they find ther e is not sufficient evidence in the application.  
 
5.4 An investigation shall not be initiated pursu ant to paragraph 1 unless the authorities have 
determined, on the basis of an examination of the degree of support for, or opposition to, the 
application expressed7 by domestic producers of the like product, that the application has been made 
by or on behalf of the domestic industry.8  The application shall be cons idered to have been made "by 
or on behalf of the domestic industry" if it is supported by those domestic producers whose collective 
output9 constitutes more than 50 per cent of the total production of the like product produced by that 
portion of the domestic industry e xpressing either support for or opp osition to the application.  
However, no investigation shall be initiated when domestic producers expressly supporting the 
application account for less than 25 per cent of to tal production of the like product produced by the 
domestic industry . 
 
5.5 The authorities shall avoid, unless a decision has been made to initiate an investigation, any 
publicizing of the application for the initiation of an  investigation.  However, after receipt of a 
properly documented application and before proceeding to initiate an investigation, the authorities 
shall notify and send a non confidentia l version of the application to  the government of the exporting 
Member concerned as well as each known exporter and foreign producer . 
 5.6
 As soon as possible after an application is accep ted, and in any event before the initiation of 
any investigation, interested parties shall be invited to provide comments on the standing of the 
application and the accuracy of the information submitted.  
 
5.7 Without prejudice to the obligation to afford  reasonable opportunity for consultation, the 
provision stated in paragraph 6 is not intended to prevent the authorities or a Member from 
proceeding expeditiously with regard to initiating the investigation, reaching preliminary or final 
determinations, whether affirmative or negative, or from applying provisional or final measures, in 
accordance with the provisions of this Agreement.  
 
5.6 8 If, in special circumstances, the authorities concerned decide to initiate an investigation 
without having received a written application by or on behalf of a domestic industry for the initiation 
of such investigation, they shall proceed only if all the provisions sti pulated in this Article are fulfilled 
the have sufficient evidence of du mping, injury and a causal link,  as described in paragraph 2, to 
justify the initiation of an investigation . 
                                                      
6 For this purpose, authorities shall check evidence contained in the application with reliable and 
independent information from public records, intra-governmental records and other available sources.  
7 In the case of fragmented industries involving an exceptionally large number of products, authorities 
may determine support and opposition by using statistically valid sampling techniques. 
8 Members are aware that in the te rritory of certain Members employees of domestic producers of the 
like product or representatives of those employees may make or support an application for an inves tigation 
under paragraph 1.  
9 The representation of producer asso ciations or groups shall be determined only in terms of individual 
support of their members.   TN/RL/GEN/75 
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5.7 9 The evidence of both dumping and injury  shall be considered simultaneously (a) in the 
decision whether or not to in itiate an investigation, and (b) thereafter, during the course of the 
investigation, starting on a date not later than the earliest date on which in accordance with the 
provisions of this Agreement prov isional measures may be applied. 
 
5.8 10 An application under paragraph 1 shall be rej ected and an investigation shall be terminated 
promptly as soon as the authorities concerned are satis fied that there is not sufficient evidence of 
either  dumping,  or of  injury or causal link between them  to justify proceeding with the case.  There 
shall be immediate termination in cases where the aut horities determine that the margin of dumping is 
de minimis , or that the volume of dumped imports, actual or  potential, or the injury, is negligible.  The 
margin of dumping shall be considered to be de minimis  if this margin is less than 2  X per cent10, 
expressed as a percentage of the export price.  The volume of dumped imports shall normally be 
regarded as negligible if the volume of dumped impor ts from a particular country is found to account 
for less than 3 per cent of imports  the total domestic consumption of the like product in the importing 
Member11 of the like product in the importing Member, unless countries which individually account 
for less than 3 per cent of the imports of the like product in the importing Member collectively 
account for more than 7 per cent of imports of the like product in the importing Member . 
 5.9
 11 An anti-dumping proceeding shall not hinde r the procedures of customs clearance. 
 
5.10 12 Investigations shall, excep t in special circumstances,  be concluded within one year, and in no 
case more than 18 months,  after their initiation. 
 5.13
 A new investigation can not be initiated for th e same product before 12 months have passed 
since the publication of a negative final determin ation notice of non-application or revocation, 
referred to the previous investigation.  
 
__________  
 
  
                                                     
 
10 The de minimis  threshold should be subject to negotiation, as stated in the FANs documents 
TNRL/GEN/30 an d TNRL/GEN/31.  
11 Negligibility shall be measured considering the entir e period of dumping investigation, that is not 
less than 12 months.