WORLD TRADE  
ORGANIZATION  TN/RL/GEN/117 
21 April 2006 
 (06-1856) 
Negotiating Group on Rules Original:   English 
  
PROPOSAL ON ARTICLE 11.2 
 
Communication from Brazil
 
   The following communication, dated 20 April 2006, is being circulated at the request of the 
Delegation of Brazil. 
  The submitting delegations have requested that this paper, which was submitted to the Rules 
Negotiating Group as an informal document (JOB(06)/ 100), also be circulated as a formal document. 
 
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  This paper elaborates upon some of the issues raised in document TN/RL/GEN/52.  The importance of establishing explicit rules and procedures applies not only to the original investigation, 
but also with equal force to the subsequent ph ases of an anti-dumping procedure such as Article 11.2 
review.  However, the current AD Agreement does not clearly articulate the rules and procedures 
applicable to reviews under Article 11.2.  While reviews under Article 11.2 are intended to ensure that 
antidumping measures “remain in force only as long as and to the extent necessary” as set forth in 
Article 11.1, the lack of explicit rules and pro cedures gives virtually unfettered discretion to the 
authorities to continue to impose anti-dumping duties that are not necessary to counteract dumping 
which is causing injury.  
 
Proposed Amendments:   
Article 11  
Duration and Review of Anti-Dumping Duties and Price Undertakings  
 
11.2 The authorities shall review the need fo r the continued imposition of the duty, where 
warranted, on their ow n initiative or, provided that a reasona ble period of time has elapsed since the 
imposition of the definitive anti -dumping duty, upon request by any interested party which submits 
positive information substantiating the need for a review.1  Interested part ies shall have the right to 
request the authorities to examine whether the con tinued imposition of the duty is necessary to offset 
dumping, whether the injury would be likely to cont inue or recur if the duty were removed or varied, 
or both.  If, as a resul t of the review under this paragraph,  the authorities determine that the 
anti-dumping duty is no longer warranted, it shall be terminated immediately.   
 
11.2 Upon request of any interested party whic h submits positive evidence substantiating a claim 
that the circumstances for the imposition of the duty in force have changed or on their own initiative, 
investigating authorities shall, provided that a reasonable period of time has elapsed since the 
                                                      
1 A determination of final liability for payment of anti -dumping duties, as provided for in paragraph  3 
of Article  9, does not by itself constitute a review within the meaning of this Article.  TN/RL/GEN/117 
Page 2  
 
  imposition of the definitive anti-dumping duty, carry out a review
2 under this paragraph to examine: 
a) whether the duty is to be varied in order to off set dumping or  the duty is to be removed; b) whether 
the injury would be likely to continue or recur if the duty were removed or va ried; or c) both. Reviews 
under this paragraph shall not extend the maximum pe riod that a duty can remain in force set out in 
Article 11.3.3  
 
11.2.1 Where the review involves an examination of  whether the duty is to be varied in order 
to offset dumping or removed, the following provisions shall apply: 
 
In a prospective assessment of duties  
 
11.2.1.1 Whenever there are transactions in commercial quantities during the period 
of review, the calculation of a dumping margin for the period of review shall be made in 
accordance with Article 2 (without zeroing).  The level of the anti-dumping duty to be 
imposed shall not exceed the lesser of the dumping margin for the period of review or 
the most recent injury margin determined by the investigating authorities.  Where the 
investigating authorities determine that the dumping margin for the period of review is 
de minimis  as defined in paragraph 8 of Article 5, or that there was no dumping for the 
period of review, the duty to be imposed sh all be zero, unless investigating authorities 
have reasons to believe that the future le vel of the export price is not likely to be de 
minimis  or above the normal value4.  
 
11.2.1.2 Whenever there are sporadic or no transactions during the period of review, 
investigating authorities shall allow exporters  or producers to submit the expected price 
at which the product would be exported if there was no anti-dumping duty in force 
(referred to as the “expected export price”). The expected export price shall be 
substantiated by relevant information relating to the exporter or producer past 
performance5, provided that: a) the difference between the expected export price and the 
normal value for the period of review is lo wer than the dumping margin of the original 
investigation; or b) the expected export price is above the normal value for the period of review.
  
 
11.2.1.2.1 If investigating au thorities have no reasons to believe that the level of 
the export price after the suspension of the anti-dumping duty is not likely to be at or above the level of the expected export price
4, the imposition of the anti-
dumping duty shall be suspended for 12 months.  If the anti-dumping duty in 
force is suspended, investigating auth orities may establish a reference price and 
duties may be definitively collected based  on this basis.  The reference price 
shall be the lesser of the normal value or the non-injurious price. 
 11.2.1.2.2 Based on the expor t prices of the period of suspension of the anti-
dumping duty, investigating authoritie s may determine a new anti-dumping 
duty, calculated in accordance with Article 2 (without zeroing).  Investigating 
authorities may conduct on-the-spot investigations, so as to verify the data 
concerned to the expected export price and/or the actual export price for the 
                                                     
 
2 A determination of final liability for payment of anti-dumping duties, as provided for in paragraph 3 
of Article 9, does not by itself constitute a review within the meaning of this Article. 
3 Editorial note: this sentence takes in to account what has been suggested in 
Document TN/RL/GEN/104 and will have to be adjusted in conjunction with changes to Article 11.3. 
4 In this case, investigating authorities shall disclose positive evidence which have led them to such 
determination and shall provide the exporter or pr oducer an opportunity to make comments thereon. 
 5 For example, the export price of the like product to third countries.   TN/RL/GEN/117 
 Page 3 
 
 
  period of suspension.  The level of the anti-dumping duty to be imposed shall 
not exceed the lesser of the newly calcu lated dumping margin or the injury 
margin.  If the weighted average actual export price for that period is above the normal value for the period of review or is de minimis  as defined in paragraph 8 
of Article 5, the duty to be imposed shall be zero, unless investigating authorities 
have reasons to believe that the future leve l of the export price is not likely to be 
de minimis  or above the normal value
4.  Except for the period of suspension and 
pending the result of the review, the level of the anti-dumping duty to be imposed shall not exceed the lesser of the dumping margin of the original 
investigation or the injury margin. 
 
In a prospective normal value assessment of duties
 
 
11.2.1.3  Notwithstanding pa ragraphs 11.2.1.1 and 11.2.1. 2, investigating authorities 
shall calculate a normal value for the exporte r or producer for the period of review, in 
accordance with Article 2.  The level of the anti-dumping duty to be imposed shall be 
based on the lesser of the normal value or the non-injurious price.  
 In a retrospective assessment of duties
 
 
11.2.1.4  Investigating authorities shall calculate a dumping margin for the exporter or 
producer for the period of review if there has been no review carried out under Article 9.3.1 for a period of two years. Inv estigating authorities are not required to carry 
out reviews under this paragraph if, as a result of reviews carried out under Article 9.3.1, 
new dumping margins, calculated in accordance with article 2 (without zeroing) have 
been determined for the purpose of calculating cash deposits.  
 
11.2.1.4.1 Whenever there are transactions in commercial quantities during the 
period of review, the calculation of a dumping margin for the period of review 
shall be made in accordance with Article  2 (without zeroing).  The level of the 
anti-dumping duty to be imposed shall not exceed the lesser of the dumping margin for the period of review or the mo st recent injury margin determined by 
the investigating authorities.  Where the investigating authorities determine that 
the dumping margin for the period of review is de minimis  as defined in 
paragraph 8 of Article 5, or that ther e was no dumping for the period of review, 
the duty to be imposed shall be zero
6.  
 
11.2.1.4.2 Whenever there are sporadic or no transactions during the period of 
review, investigating authorities shall a llow exporters or producers to submit the 
expected price at which the product w ould be exported if there was no anti-
dumping duty in force (referred to as the “expected export price”).  The expected 
export price shall be substantiated by rele vant information relating to the exporter 
or producer past performance5, provided that: a) the difference between the 
expected export price and the normal value for the period of review is lower than 
the dumping margin of the original investigation; or b) the expected export price 
is above the normal value for the period of review.  
 
11.2.1.4.2.1  If investigating authoritie s have no reasons to believe that 
the level of the export price after the suspension of the anti-dumping duty is not likely to be at or above  the level of the expected export 
                                                     
 
6 This provision does not prevent investigating authorities from determining the final liability for 
payment of anti-dumping duties, as provided for in Article 9.3.1. TN/RL/GEN/117 
Page 4  
 
  price
4, the imposition of the anti-dumping duty in force shall be 
suspended for 12 months.  If the anti-dumping duty is suspended, 
investigating authorities may establish a reference price and duties may 
be definitively collected based on this  basis.  The reference price shall 
be the lesser of the normal value or the non-injurious price. 
 
11.2.1.4.2.2  Based on the export pri ces of the period of suspension of 
the anti-dumping duty, investigating authorities may determine a new 
anti-dumping duty, calculated in accordance with Article 2 (without 
zeroing).  Investigating authorities may conduct on-the-spot investigations, so as to verify the da ta concerned to the expected export 
price and/or the actual export price for the period of suspension.  The 
level of the anti-dumping duty to be imposed shall not exceed the lesser of the newly calculated dumping margin or the injury margin. If the weighted average actual export price for that period is above the 
normal value for the period of review or is de minimis  as defined in 
paragraph 8 of Article 5, the duty to be imposed shall be zero.  Except for the period of suspension and pending the result of the review, the level of the anti-dumping duty to be imposed shall not exceed the lesser of the dumping margin of the original investigation or the most recent injury margin determined by the investigating authorities. 
 
11.2.2 Where the review involves an examinati on of whether the injury would be likely to 
continue or recur if the duty were removed or va ried, investigating authorities shall evaluate all 
relevant factors, including the following: 
(a) the likely volume of the likely dumped imports, and, in particular, whether 
there is likely to be a significant increase in the volume of these imports, either in 
absolute terms or relative to the producti on or consumption of the like product in 
the importing Member; 
(b) the likely prices of the likely dumped imports, and likely effect of such prices 
on the prices of the domestic like product, in particular, whether these imports are 
likely to significantly undercut the prices of the domestic like product, or lead to price depression or price suppression;  
(c) the likely impact of the likely dumped imports on the domestic industry, 
having regard to all relevant econom ic factors and indices, including any 
potential decline in output, sales, market  share, profits, productivity, return on 
investments or utilization of producti on capacity, and any potential negative 
effects on cash flow, inventories, empl oyment, wages, growth, including efforts 
to produce a derivative or more advan ced version of the like product, or the 
ability to raise capital or investments; 
(d) changes in market conditions in the exporting country, in the importing 
Member and in third countries, includi ng changes in the supply of and demand 
for the like product
7, as well as any changes in trends and in sources of the like 
product in the importing Member; and 
(e) likely effects of known factors other than the likely dumped imports to the 
injury to the domestic industry, including,  inter alia , the likely volumes and 
prices of imports of the like product other than those from exporters or producers 
likely to dump, contraction in demand or changes in the patterns of consumption, 
trade restrictive practices of and competition between the foreign and domestic 
                                                      
 7 This may include evidence of the imposition of anti-dumping or countervailing duties by other 
Members in respect of the like product,  and evidence that such duties are lik ely to cause a diversion of imports 
into the Member.  TN/RL/GEN/117 
 Page 5 
 
 
  producers, developments in technology and of products other than the like 
product, and the export performance and productivity of the domestic industry. 
 
11.2.2.1  In making an examination of whether the injury would be likely to continue 
or recur if the duty were removed or varied , investigating authorities shall also examine 
whether the likely dumped imports in and of themselves, through the effects of dumping, are likely to cause injury if the duties were te rminated or varied.  This examination shall 
be based on all relevant evidence before the authorities. 
 
11.2.3 Investigating authorities shall examine th e accuracy and adequacy of the evidence 
provided in the request to determine whether ther e is sufficient evidence to justify the initiation 
of a review under this paragraph .  The decision to initiate, or not, a review under this paragraph 
shall be taken without undue delay.  In case i nvestigating authorities decide not to initiate a 
review, they shall provide reasoned expl anations to the interested parties.  
 
  
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