WORLD TRADE  
ORGANIZATION  G/ADP/Q1/ISR/15 
G/SCM/Q1/ISR/15 11 September 2006 
 
(06-4321) 
Committee on Anti-Dumping Practices 
Committee on Subsidies and Countervailing Measures Original:   English 
 
 
 
NOTIFICATION OF LAWS AND REGULATIONS UNDER 
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS 
 
Replies to Questions posed by the UNITED STATES1  
regarding the Notification of ISRAEL2 
   The following communication, dated 6 September 2006, is being circulated at the request of 
the Delegation of Israel. 
 
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Q1. In the event of a conflict between Israel’s int ernational obligations and its domestic law, 
which takes precedence in the administration  and judicial review of trade levies? 
 
Reply
 
  Since Israel is a member of the WTO, Israeli anti-dumping officials are required to observe the provisions of the Anti-Dumping Agreement (herei nafter –ADA) when such provisions are not in 
contravention with the existing domestic legislation.  According to the Israeli legal system in the case 
of a direct conflict between the ADA and the Tr ade Levies Law- 1991 (hereinafter- the Law), the 
provisions of the domestic legislation would override .  It should be noted however, that according to 
Israeli principles of jurisprudence it is presumed that  the Israeli legislature enacts laws which are in 
conformity with principles of international law.  Th erefore the Israeli court will in fact interpret the 
Trade Levies Law in conformity with the AD Agreement. 
 
Follow-up Question
:  If Israeli law as written conflicted with the provisions of the Anti-
Dumping Agreement so that it was not possible to  interpret the Trade Levies Law in conformity 
with the ADA, how would the administering au thority and Israeli courts resolve the conflict?  
 Reply
 
  Firstly, we would like to reiterate the point ma de in our initial response (G/ADP/Q/IRS/12) by  
bringing a quote of the President of the Israeli S upreme Court, the Honourable Justice Aharon Barak, 
(which has been quoted in several Supreme Court decisions, by lower courts and by  the advisory 
committee, a central body in the anti-dumping process):  “The State of Israel is a member of the Law 
of Nations.  Therefore it is imperative that Israel not  be in breach of its international obligations; so 
that where two possible explanations exist in the in terpretation of a law, it is desirable to choose the 
interpretation which will bring about fulfilment of Israel’s international obligation and not one which 
will result in a breach of it.” 
                                                     
 
1 G/ADP/Q1/ISR/14-G/SCM/Q1/ISR/14 
2 G/ADP/N/1/ISR/3-G/SCM/N/1/ISR/3 (24 January 2006) G/ADP/Q1/ISR/15 
G/SCM/Q1/ISR/15 Page 2 
 
 
   
 The question posed requires us nonetheless to address  the situation of a “direct contradiction”.  
We must emphasize that as far as the amended law is concerned its main objective is to ensure that no 
such “direct contradictions” could arise and we don’t believe there exist any .  If hypothetically 
speaking such a “direct contradiction” would arise according to Israel’s dualist legal system the 
domestic law would prevail.  
 
Q12.  Please explain how Section 29 ITLL compli es with the requirements set forth in 
Articles 7.1 and 7.3 of the AD Agreement and Articles 17.1 and 17.3 of the SCM Agreement.   
 
(a) Please provide information as to whethe r Israel has previous experience applying 
provisional measures prior to 60 days from the date of initiation.   
 (b) What is the maximum period for which provisional measures may remain in effect?   
 
(c) Are provisional measures set at the rate of the dumping margin?    (d) Does Israel have discretion to apply the lesser duty rule?   
 
Reply
 
 
(a) Since Israel's accession to the WTO no provisi onal measures have been adopted prior to 
60 days from the date of initiation. 
 (b) In accordance with Article 29 (c) of the La w, a provisional measure may be imposed for a 
period of six months.  This period may be ex tended by three more months upon decision of 
the Commissioner following a request by the expor ters representing a significant percentage 
of the exports to Israel. 
  (c) Provisional measures are set at the rate of the estimated rate of the anti dumping duty.  
(d) Pursuant to Article 32.19(b) of the Law, if a duty that is lower than the dumping rate is found 
to be sufficient to prevent material injury to the domestic industry, the anti-dumping duty shall be set at the rate required to prevent said injury.  
 
Follow-up Question 12b
:  If an exporter has not  requested an extension to nine months, please 
clarify whether six months is the maximum time permitted by the ITLL for provisional 
measures to remain in effect.  Please describe Israel’s procedure in this regard prior to the adoption of the ITLL and explain in what way, if any, adoption of Article 29(c) and other relevant provisions of the ITLL will change this procedure?  If the maximum period for provisional measures expires and the final determin ation has not yet been issued, please confirm 
that provisional anti-dumping duties will cease to be collected until a final determination is 
issued.  Please identify any other provisions of Israeli law or regulations that guide the 
administering authority’s use and collection of provisional duties. 
 
Reply
 
 
 If the exporters have not  requested an extension to nine months, than six months is the 
maximum time permitted by the amended Law for  provisional measures to remain in effect.  After 6 months, if the exporters have not requested an ex tension, the collection of the provisional guarantee 
is ceased and the guarantee so far collected is retu rned.  We confirm that if the maximum period for  G/ADP/Q1/ISR/15 
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  provisional measures expires and the final determin ation has not yet been issued the provisional 
guarantees will cease to be collected until a final determination is issued.  
  The other relevant provision with regards to  the collection of the provisional guarantee is 
found in Article 32.23 of the amended Law. 
  Please note that the procedure prevailing prio r to the adoption of the amended Law is 
irrelevant for the purpose of Article 18.5 of the ADA.  
 
Q13. Please explain the effect of the “temporary  guarantee” (Section 29 ITLL) on the overall 
provisional measures.  
 
(a) Were the final determination to result in a lower rate than established in the 
preliminary determination, what is the process for refunding overpayment of 
provisional measures?   
 (b) Will interest be paid on the overpaid funds?  
Reply
 
 
(a) In Israel, a provisional measure takes the form of a temporary guarantee which is deposited 
with the customs authority.  Pursuant to Artic le 32.23 (a) of the Law if the final duty is a 
lower rate than established in the preliminary determination the guarantee shall be forfeited 
only in the amount of the duty and the difference shall be returned. 
 
(b) The difference as stated above is returned with the addition of linkage (to the cost of living 
index) differentials and interest. 
 
Follow-up Question 13 :  If provisional measures continue to be collected between the end of the 
six (or nine) month period and the final det ermination, under what circumstances will these 
funds be returned?  Please describe Israel’s pro cedure in this regard prior to the adoption of 
the ITLL and explain in what way, if any, adop tion of the ITLL will change this procedure.  
Once the investigating authority determines that  there has been an overpayment (i.e. that the 
amount of provisional duty collected exceeded th e margin of dumping finally determined), is 
there a deadline by which the collecting authority must refund such an overpayment with interest? 
 
Reply
 
  According to Article 29 c, the provisional guara ntee will not continue to be collected at the 
end of the six month period (or nine month period, if an extension is requested by the exporters).  
  
 Please note that the procedure prevailing prio r to the adoption of the amended Law is 
irrelevant for the purpose of Article 18.5 of the ADA.
 
  The Law does not specify a deadline for refunds in  the case of overpayments and interest  as 
m in Article 3 but the Customs Authority is required to carry out such refunds as promptly as possible.  
 G/ADP/Q1/ISR/15 
G/SCM/Q1/ISR/15 Page 4 
 
 
  Q14.  Section 30.(b) ITLL states that “[t]he Commissioner may invite
 a notified party to also 
present its claims orally, as submitted in writing.” (Emphasis added.)  (a) Please explain whether a notified party has the right to request a hearing, and the means 
by which a notified party may make such a request. 
 (b) If the opportunity for a hearing is solely  at the discretion of the Commissioner, please 
explain the criteria used to determine which no tified parties will receive an invitation to 
participate in an oral presentation.  
 
Reply
 
 
(a) As opposed to the hearings conducted by the a dvisory committee, the notified parties have no 
guaranteed right to a hearing before the Comm issioner.  In practice, the Commissioner does 
allow for interested parties, who so request, to meet with him and present their claims orally.   
 (b) The Commissioner in all investigations meet s with the domestic industry and importers to 
allow them to present their case orally. 
 
Follow-up Question 14a:
  How is an interested party informed that it will be allowed to meet 
with the Commissioner upon request?  Given that the Commissioner meets in all investigations 
with the domestic industry and importers, why is a request required from other interested 
parties, such as exporters? 
 
Reply  
 
 An interested party who wishes to meet with  the Commissioner will make this fact known to 
the Commissioner and will then receive notice of th e scheduling for such a meeting.  We would like 
to clarify our original response ((G/ADP/Q/IRS/12):  it is common practice for the Commissioner to invite the importers and domestic producers to pr esent their arguments orally since these parties are 
present in Israel. 
 
 Please note that according to the Law, the hearing,  in which all notified parties have a right to 
present their arguments, is conducted by th e advisory committee (Article  32.10).  
 
Follow-up Question 14b
:  Please clarify the procedures in place for the Commissioner’s meeting 
with the domestic industry and importers.  Do respondents and other in terested parties receive 
notice of the meeting and an opportunity to presen t their views?  If not, are they given some 
other opportunity to review and rebut the inform ation presented by the domestic industry?  Is a 
record of the meeting part of the administrative record of the investigation?  What explanation 
must the Commissioner give for any decision not in  conformity with the views of the advisory 
committee, and is such a decision judicially rev iewable?   Please describe Israel’s procedures 
with respect to meetings with the Commissioner pr ior to the adoption of the ITLL and explain 
in what way, if any, adoption of the ITLL will change this procedure. 
 
Reply  
 
 There are no written procedures in place con cerning the meeting with the Commissioner as 
provided for in Article 30 (b). Nonetheless, in accord ance with Article 30 (b) of the Law, it is clear 
that the oral presentation is supplementary to a writt en submission.  A non confidential version of the 
submission is made available to the other parties to  the investigation in accordance with Article 30 (c)  G/ADP/Q1/ISR/15 
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  and they may comment on the submission.  These procedures shall not hinder the progress of the 
investigation in accordance with the time lines set out in the Law. 
  The main role of the advisory committee is  set forth in Articles 32.10 and 32.11 of the 
amended Law.  It should be noted that pursuant to  Article 32.10 of the amended Law the advisory 
committee invites all notified parties to pr esent their arguments before the committee. 
 
 All decisions made by the Commissioner are judicially reviewable. 
 
 Please note that the procedure prevailing prio r to the adoption of the amended Law is 
irrelevant for the purpose of Article 18.5 of the ADA. 
 
Q22.  Section 32.18(a) of the ITLL specifies “the tr ade relationship between Israel and foreign 
countries” as a factor the Minister of Finance sh all take into account in determining whether to 
accept the advisory committee’s re commendations.  Could Israel please elaborate on how this 
provision is applied? 
 
Reply
 
  Firstly, it should be clarified that according to Article 32.18(a) of the Law it is actually the 
Minister of Industry, Trade and Labour and not the Finance Minister, who is authorized to consider 
whether to impose a duty taking into account Israel's trade relations with foreign countries.  To date 
the Minister has always followed the recommendati ons of the advisory committee so it would be 
difficult to elaborate on this provision at this point in time.    Follow-up Question 22
:  If the advisory committee recommended imposing duties on imports of 
a product from multiple countries, would the Minister of Industry, Trade and Labour have 
discretion to determine to apply the duties to only  a subset of those countries?  Can the Minister 
also take into account non-econo mic issues in relations between Israel and a country that is the 
source of dumped or subsidized products?  Pl ease describe the considerations taken into 
account prior to the adoption of the ITLL and expl ain in what way, if any, adoption of the ITLL 
will change these considerations. 
 
Reply  
 
 In keeping with Article 9.1 of the ADA which st ates that “it is desirable that the imposition be 
permissive,” Article 32.18 of the Law allows for discr etion to be exercised on the part of the Minister 
of Industry, Trade and Labour, for not imposing a du ty.  The wording used is : “taking into account 
inter alia , the trade relationship between Israel and fo reign countries and reasons pertaining to the 
economy in general”.  The focus is clearly on ec onomic and trade issues. Nonetheless the Law, uses 
the phrase “ inter alia ” so as not to shut out other possible c onsiderations depending on the particular 
circumstances of a case.  We want to emphasize that this provision which also appeared in the original 
legislation has never been exercised by the Minister. 
  The question raised in the case of an imposition of duties on imports of a product from multiple countries and non imposition only on a subset of  those countries is interesting in light of the 
language of Article 9.2 of the ADA which addresses th e “non discrimination” principle, it would seem 
that once a decision is made to impose the duty it must be collected from all suppliers in the 
appropriate amounts except those from whom a pr ice undertaking is accepted.  Another possible 
interpretation could be that in light of Article 9.1 the non discrimination principle referred to in 
Article 9.2 could be interpreted as to non discrim ination between several s uppliers from one country. 
 G/ADP/Q1/ISR/15 
G/SCM/Q1/ISR/15 Page 6 
 
 
   Please note that the considerations taken into  account prior to the adoption of the amended 
Law are irrelevant for the purpose of Article 18.5 of the ADA. 
 
Q23. Please identify the criteria Israel examin es in determining whether to impose a lesser 
duty pursuant to Section 32.19(b) of the ITLL.  
Reply
 
  The authorities in all cases determine the level of the duty required to prevent injury to the 
domestic industry.  If the margin of dumping is above that level, the lesser duty is imposed.   
 
Follow-up Question 23
:  Please clarify whether Israel considers a lesser duty in every 
investigation.  If so, how is that reflected in the preliminary and final determinations?  If not, 
what conditions must be present for Israel to undertake a lesser duty examination?  Please 
explain what factors Israel analyzes and what me thodology it uses in determining “the level of 
the duty required to prevent injury to the do mestic industry.”  Please describe Israel’s 
procedure and methodology in this regard prior to the adoption of the ITLL and explain in what way, if any, adoption of the ITLL will change this procedure.    
Reply
 
 
 The ADA in Article 9.1 states, that it is “desirable that the duty be less th an the margin if such 
lesser duty would be adequate to remove the injury to the domestic industry”.  In every investigation 
Israel considers a “lesser duty”. It is considered in  the preliminary determination as well as in the final 
determination.  This examination is carried out on the basis of the information and evidence before the 
Authorities,  In order to ascertain the “lesser duty” the Authorities base their analysis on the 
determination of a non injurious price ( a price that will prevent injury) to the domestic industry.  The 
non injurious price is then compared with the price of the dumped imports at the same level of trade 
and the difference between the two prices is the rate of duty, provided that it is less than the dumping 
margin established.  A non injurious price may be de termined according to sev eral different methods.  
One common method is to establish a “target price” which is a price that covers the costs and profits 
of the domestic industry.  There is no one single profit rate that is used in all cases but rather 
depending on the circumstances of the case, the appropriate level of profits is determined. 
  Another possible method of calculating the n on injurious price is to use the undercutting 
margin used in the injury determination.  This may not be suitable in certain cases in which the injury 
caused to the domestic market is not only through price undercutting but also through price depression 
or price suppression. 
 
 Please note that the procedure and methodology  concerning the lesser duty prior to the 
adoption of the amended Law are irrelevant for the purpose of Article 18.5 of the ADA. 
 
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