WORLD TRADE  
ORGANIZATION  TN/RL/GEN/98/Rev.1 
2 June 2006 
 (06-2660) 
Negotiating Group on Rules Original:   Spanish 
  
 
NEW SHIPPER REVIEWS 
(ARTICLE 9.5 OF THE ANTI-DUMPING AGREEMENT) 
 
Paper from Mexico
 
 
Revision  
   The following communication, dated 1 June 2006, is being circulated at the request of the 
delegation of Mexico. 
 
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   The proposal contained in this document does not represent a final position and may be 
subject to additions and/or amendments in the course of the negotiations. 
 
Object 
 To clarify and elaborate on the content of Article 9.5 of the Anti-Dumping Agreement (ADA) 
so as to provide investigating authorities with a practical guide for conducting "new shipper" 
proceedings, and clear guidelines to help firms make more effective use of this facility. 
 
Problem with the current text of the Anti-Dumping Agreement 
Time-frame for new shipper reviews 
 
 As is the case with many other provisions of the ADA, Article 9.5 establishes that a review shall be conducted promptly for the purpose of determining individual margins of dumping for 
exporters or producers in the exporting country that made no shipments, during the period of 
investigation, to the Member which imposed the an ti-dumping duty.  It likewise stipulates that such a 
review shall be initiated and carried out on an accel erated basis, compared to normal duty assessment 
and review proceedings.  
 This to our mind is perfectly justified.  In addition to the obvious necessity of determining an 
individual margin of dumping for a new exporter, the administrative burden involved in new shipper 
reviews is plainly far lighter than in normal duty assessment and review proceedings.  Moreover, it is 
preferable to establish a new exporter's individual ma rgin of dumping as promptly as possible, so as to 
prevent a new exporter with a relationship to expor ters subject to anti-dumping duties that has failed 
to apprise the investigating authority of the s ituation from becoming a means of conducting further 
exports through the mere provision of a guarantee.   Nonetheless, the terms "promptly" and "on an accelerated basis" are broad enough to allow vast discrepancies in terms of time-frames, which depend on the Member carrying out the review, to the detriment of the predictability that must govern  any administrative procedure.  Furthermore, the TN/RL/GEN/98/Rev.1 
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  obligation to conduct a review on an accelerated  basis compared to normal duty assessment and 
review proceedings implies that it could ultimatel y be argued that a new shipper review that took a 
few weeks less to complete than normal proceedings is consistent with the ADA.  By the same token, 
we believe that it does not suffice for Article 9.5 of the ADA to lay down the obligation to initiate a 
new shipper review on an accelerated basis.  Mexico  regards six to eight months as a reasonable time 
period for carrying out such a review.  Since th e administrative burden and administrative practice 
may vary from one authority to another, however, we have not included this aspect in our proposed 
amendments, leaving it aside for subsequent discussion. 
Representativeness of new shipper exports 
  Although it is necessary in the interests of fa irness and predictability to determine a new 
shipper's individual margin of dumping, it is no le ss imperative to prevent misuse of this kind of 
procedure.  There is a fair likelihood that a new expor ter will have a negligible  volume of exports at a 
distorted export price and ask to be assigned an individual dumping margin on that basis – only to export in vastly increased quantities, with a higher ma rgin of dumping than that which was calculated, 
once that individual margin has been assigned. 
  We therefore believe that the ADA should est ablish that in order to receive individual 
margins of dumping, new exporters should provide ev idence, in the course of their respective reviews, 
of having made representative exports of the product subject to anti-dumping duties.  Mexico is aware 
that the effectiveness and the fa irness of a mechanism of this kind will depend on its mode of 
operation, scope and characteristics being defined as clearly as possible, and we encourage all 
Members to put forward any ideas and views they may have on the subject. 
 
Verification of information submitted by applicants for new shipper review 
  Although the administrative burden for investigati ng authorities is far lighter in a new shipper 
review than it is in other types of proceeding,  equity and the proper operation of anti-dumping 
systems throughout the Membership demand that inv estigating authorities be empowered to ascertain 
the veracity and accuracy of the information they have to evaluate in the course of new shipper 
reviews, and even to obtain further details.  In partic ular, the fact that exporters or producers applying 
for new shipper review are required to show that they  are not related to exporters or producers subject 
to anti-dumping duties, along with the point made earlier in regard to the representativeness of 
exports, amongst other things, constitute sufficient grounds to allow investigating authorities to carry 
out on-the-spot investigations.   It should be emphasized that the ADA contains  no provisions as to the conduct of such 
investigations in the context of new shipper re views.  For the above reasons, Mexico believes it 
appropriate to amend the wording of Article 9.5 of  the ADA and to state that investigating authorities 
possess such discretion, to be exercised in conformi ty with the provisions of Article 6.7 of the ADA 
(including, obviously, those of Annex I to the Agreement).  
Proposed amendments 
 
Proposed amendments to the Anti-Dumping Agreement  
(The new text is underlined and the text to be deleted is crossed out.) 
 
9.5 If a product is subject to anti-dumping duties in an importing Member, the authorities shall 
promptly carry out a review for the purpose of determining individual margins of dumping for any 
exporters or producers in the exporting country in qu estion who have not exported the product to the 
importing Member during the period of investigation,  provided that these exporters or producers can 
show that they are not related to any of the exporte rs or producers in the exporting country who are   TN/RL/GEN/98/Rev.1 
 Page 3 
 
 
  subject to the anti-dumping duties on the product, and that they have exported the product in 
commercially representative quantities, depending on th e type of product or market concerned.  The 
investigating authority's assessment of wh ether the quantities exported are commercially 
representative shall take into account:  (a) whether the volumes can be considered as ordinary for the 
product concerned and for the importer's market; (b) whether the exports are subject to cyclical 
variations or seasonality; (c) whether the number of units corresponds to ordinary sales through 
normal marketing channels, and not samples; (d) whether such volumes are marketed normally in 
international markets.  Such a review shall be initiated and carried out on an accelerated basis, 
compared to normal duty assessment and revi ew proceedings in the importing Member may not 
extend over more than [XX months] following the date of the request from the exporter concerned.  In 
this connection, and in conformity with the provisi ons of Article 6.7 and Annex I, the investigating 
authorities may carry out on-the-spot investigations in  the territory of the country of the applicant for 
the review.   No anti-dumping duties shall be levied on im ports from such exporters or producers while 
the review is being carried out.  The authorities ma y, however, withhold appraisement and/or request 
guarantees to ensure that, should such a review result in a determination of dumping in respect of such 
producers or exporters, anti-dumping duties can be levied  retroactively to the date of the initiation of 
the review.  Similarly, if the anti-dumping duty resulting from the review of the exporter is less than 
the duty paid by the exporter prior to the date of initiation of the review, the importing Member shall 
reimburse the difference to the exporter.  In the contrary case, the importing Member may not charge 
the difference to the exporter.  
 
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