WORLD TRADE  
ORGANIZATION  TN/RL/GEN/89 
18 November 2005 
 (05-5448) 
Negotiating Group on Rules Original:   English 
  
 
IDENTIFICATION OF PARTIES 
 
Paper from Brazil and the United States
 
  
 The following communication, dated 16 November 2005, is being circulated at the request of 
the Delegations of Brazil and the United States.   The submitting delegation has requested that th is paper, which was submitted to the Rules 
Negotiating Group as an informal document (JOB(05)/ 292), also be circulated as a formal document. 
 
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Introduction
 
 
 One of the most important functions of the administering authority at the beginning of an 
investigation is to identify and notify the interested  parties to the extent it is able.  Parties cannot 
defend their interests if they do not know that a pr oceeding that may affect those interests has been 
initiated.  Parties also need to know who the other in terested parties are.  Th is applies to the domestic 
producers of the like product, whether or not they support the application, as well as to importers, and 
foreign producers and exporters.  Some authorities in the past have taken the view that they can rely 
solely on the parties to identify th emselves.  Such practices, however, are inconsistent with the current 
obligation to conduct an anti-dumping or counter vailing duty proceeding in a fair and unbiased 
manner.  In order to avoid any future misinterpr etation, the Anti-Dumping Agreement (ADA) and the 
Agreement on Subsidies and Countervailing Measures (ASCM) should be amended to further clarify 
that the administering authority must take an active role in identifying the interested parties in its 
investigations and notifying them of the proceeding. 
 Identification of the Domestic Industry
 
  The firms making up the domestic industry have an important role to play in an anti-dumping 
or countervailing duty investigation, particular ly in providing information pertinent to the 
determination of material injury.  Because their in formation is analyzed collectively to determine 
whether the imports under investigation have caused material injury to the industry, the level of 
participation by those firms is important.  Ideally , the investigating authority will identify every 
domestic producer, in order to ensure that its assessment  of any material injury to the industry is as 
complete as possible.  With the exception of fragm ented industries, where other approaches may be 
appropriate, failure to identify a significant propo rtion of the industry will adversely affect the 
accuracy of the injury determination.
1  
 
                                                      
1  The proponents would welcome a discussion of an appropriate definition of a “fragmented industry” 
for purposes of determining industry support, but note that the concept is reflected in the text of the current 
Agreements at footnote 13 of th e ADA and footnote 38 of the ASCM. TN/RL/GEN/89 
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  While the Agreements already require authoriti es to take an active role in identifying the 
members of the domestic industry, some Members c ontinue to misinterpret the "major proportion" 
language of Article 4.1 of the ADA and Article 16.1 of the ASCM, to authorize them to accept passively the list of producers included in the app lication under Article 5.2(i) of the ADA and Article 
11.2(i) of the ASCM as the domestic industry.  This has led to situations in which injury 
determinations have been based on a very limited por tion of the domestic industry.  The Agreements 
should be improved to make clear the active ro le required of the investigating authority.
2 
 Identification of Exporters and Foreign Producers in Anti-Dumping Investigations
 
 
 Identification of the relevant exporters or  foreign producers in anti-dumping investigations  is 
just as important as identification of the members of the domestic industry, although it may prove more difficult for the investigating authority.  Howe ver, the fundamental principle that should guide 
the administering authority’s actions is the same:  an objective and unbiased anti-dumping  
investigation requires the authority to play an ac tive role in seeking the information it needs.  
Consequently, the authority should not be permitte d to rely passively on the list of respondents 
provided in the anti-dumping  application.  Nor should it be permitted to rely solely on a "notice of 
appearance" process, or on notif ication to the government of the exporting Member, although such 
procedures may play an important role.  Rather, th e authority must take active steps to identify as 
many of the foreign producers or exporters as it is able.
3  Such an active pro cess could involve asking 
the government of the exporting Member to work w ith relevant trade associations in the exporting 
Member to identify any producers or exporters of wh ich they are aware, to consulting with its own 
customs authorities about additional exporters, to conducting electronic and other appropriate research 
to identify potential respondent companies.  Alt hough actively seeking to identify the exporters and 
foreign producers is required by the ADA as currently drafted, in our view, a further clarification may be necessary. 
 
Proposal: Identification of Domestic Industry
 
 
5.2  [11.2] An application under paragraph 1 shall include evidence of (a) dumping [shall 
include sufficient evidence of the existence of (a ) a subsidy and if possible, its amount,], (b) injury 
within the meaning of Article VI of GATT 1994 as interpreted by this Agreement and (c) a causal link 
between the dumped [subsidized] imports and the alle ged injury.  Simple assertion, unsubstantiated 
by relevant evidence, cannot be considered sufficient to meet the requirements of this paragraph.  The 
application shall contain such information as is reasonably available to the applicant on the 
following:  
(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.  Where a written application 
is made on behalf of the domestic industry,  the application shall identify the industry 
on behalf of which the application is made by , a list of all known domestic producers 
of the like product (or, in the case of fragmented industries,  associations of domestic 
producers of the like product) and, to the exten t possible, a description of the volume 
and value of domestic production of the like product accounted for by such 
producers; 
 
* * * * * 
                                                      
2 Again, an important exception is  the situation of fragmented industries, in which the applicants and 
authority alike will necessarily be  limited in the amount of informa tion they are able to gather. 
3  We bear in mind that the producers or exporters may also be part of a fragmented industry, and thus 
the authority’s ability to collect information in a manner which does not unduly delay the proceeding may be 
limited.  TN/RL/GEN/89 
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5.3  [11.3] The authorities shall examine [r eview] the accuracy and adequacy of the evidence 
provided in the application to determine whethe r there is sufficient evidence [the evidence is 
sufficient] to justify the initiation of  an investigation.  In particular , the authorities shall inquire (such 
as by consulting sources reasonably available to th em including trade associations or publications) 
whether there are any domestic producers of the like product (or, in the case of fragmented industries, 
associations of domestic producers of the li ke product) not named in the application.  
 
* * * * * 
 
Proposal: Identification of Exporters and Fore ign Producers in Anti-Dumping Investigations  
  
6.1 All interested parties in an anti-dumping investi gation shall be given no tice of the information 
which the authorities require and ample opportunity to  present in writing all evidence which they 
consider relevant in respect of the investigation in  question.  To permit such participation the 
authorities shall inquire (such as by consulting sour ces reasonably available to them including trade 
associations, trade publications, or import records) whether there a re any foreign producers, 
exporters or importers of the product under consider ation not named in the application.  Reliance on 
a notice of appearance procedure and notification of  the government of the exporting member shall 
not alone be sufficient.   
 
* * * * * 
 12.1 When the authorities are satisfied that there is sufficient evidence to justify the initiation of an 
anti-dumping investigation pursuant to Article 5, the Member or Members the products of which are 
subject to such investigation and other interested parties known to
 identified by  the investigating 
authorities to have an interest therein  shall be notified and a public notice shall be given. 
 
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