. /.  WORLD TRADE  
ORGANIZATION  TN/RL/GEN/108 
6 March 2006 
 (06-0958) 
Negotiating Group on Rules Original:   English 
  
 
DISCLOSURE OF ESSENTIAL PRELIMINARY 
LEGAL AND FACTUAL CONSIDERATIONS 
(MANDATORY PRELIMINA RY DETERMINATIONS) 
(ADA ARTICLE 6, ASCM ARTICLE 12) 
 
Paper from the United States
 
   The following communication, dated 2 March 2006, is being circulated at the request of the 
Delegation of the United States 
 
 The submitting delegation has requested that th is paper, which was submitted to the Rules 
Negotiation Group as an informal document (JOB(06)/48), also be circulated as a formal document.  
_______________ 
  
 The United States believes that the interests of transparency and full participation by parties 
are promoted by requiring that the parties be inform ed, not only of the facts before the authority, but 
also of the authority’s interpretati on of those facts, and how they relate to the pertinent principles of 
law to be applied.  In several recent papers, Me mbers have noted the importance of disclosure to the 
interested parties of the essential facts that the aut hority considers to be of greatest importance, as well 
as the authority’s analysis of those facts.
1  However, we have not been persuaded by these Members’ 
contention that such disclosure obligations are i nherent in current provisions of the ADA or ASCM.2  
To use the language of the Doha mandate, this issu e appears to be one in which an “improvement”, 
rather than a “clarification”, is necessary.  
 In the view of the United States, disclosure of the essential preliminary legal and factual 
considerations is a fundamental role of prelimin ary determinations.  The concept of “preliminary 
determinations” currently has an undefined st atus under the ADA and ASCM; it is referenced 
indirectly in several provisions, but no provision dir ectly provides any obligations with respect to it.
3  
In order to further the goal of giving parties a fu ll and genuine opportunity for the defence of their 
interests, the obligation to issue a preliminary determination that discloses the authority’s essential 
                                                      
1 See, Proposal on the Disclosure of Essential Facts , Communication by Turkey, TN/RL/GEN/63 
(16 September 2005) and Further Proposal on Issues Relating to Article 6.9 of the ADA , Paper from Norway, 
TN/RL/GEN/87 (17 November 2005). 
2  The United States and other Members have also raised significant practical questions about the 
disclosure procedures these Members have proposed. 
3 Articles 6.8, 6.14, 7.1, 8.2, 12.2 and 16.4 of th e ADA and Articles 12.7, 12.12, 13.2, 13.3, 17.1, 18.2, 
22.3, 22.4 and 25.11 of the ASCM all establish obligations which flow from the act of issuing a preliminary 
determination.  However, notwithstandi ng these repeated references to prel iminary determinations, no provision 
of either Agreement establishes the timing or conditions  under which such a preliminary determination should 
be issued.   
 TN/RL/GEN/108 
Page 2  
 
  preliminary legal and factual considera tions should be explicit and mandatory.
4  This proposal is not 
intended to have any effect on the discretionary na ture of the decision whether to apply provisional 
measures in conjunction with a preliminary determination. 
  The timing of the disclosure of the essential pre liminary legal and factual considerations with 
respect to the determination of dumping or countervailable subsidization is an important 
consideration.  If this disclosure is given too late in the process, the interested parties may not have 
sufficient time to prepare their comments, and may fi nd the authority is already settled in its views.  
More significantly, under the current practices of many Members, the disclosure is only given at a 
stage when the parties are precluded from providing additional factual information.  On the other 
hand, if the disclosure is given too soon, any prel iminary analyses and findings may not be able to 
reflect a full consideration of the questionnaire responses.     In the proposal below, we have not suggest ed specific deadlines for disclosing preliminary 
legal and factual considerations .  However, we note that under the current practice of the 
United States, preliminary determinations of dumpi ng normally are issued 140 days after initiation of 
an antidumping investigation, and preliminary determinations of s ubsidization 65 days after initiation 
of a countervailing duty investigation, althoug h these deadlines may be extended in certain 
circumstances.  We also note that separate consider ations with respect to preliminary determinations 
of injury may dictate that these determinations take place at an earlier date and, in any case, no later than the preliminary determination of du mping or countervailable subsidization. 
 
Proposed Text
 
  
ADA Article 6.6 bis  [ASCM Article 12.5 bis]
 
 
Not later than [X] months after initiation of an investigation, the authorities shall make 
preliminary determinations of dum ping [the existence of a subsid y] and injury containing the 
information specified in Article 12.2.1 [Article  22.4].  Preliminary de terminations of dumping 
[the existence of a subsidy] shall not be made prior to the deadline for receipt of replies to 
questionnaires under Article 6.1.1 [Article 12.1. 1], and the preliminary determinations of 
injury.  Prior to making a final determination,  authorities shall give interested parties a 
reasonable time after the issuance of a public noti ce of a preliminary determination to provide 
additional factual information and legal argumentation. 
 
__________ 
 
 
                                                      
4 In addition to the transparency and due process be nefits of establishing a mandatory rule for the 
issuance of preliminary determinations, in the paper entitled Preliminary Determinations , TN/RL/GEN/25 
(20 October 2004) the United States noted that the curr ent lack of rules mandating preliminary determinations 
creates a number of other problems.  For example, given the stipulation in Articles 8.2 of the ADA and 18.2 of 
the ASCM that price undertakings sh all not be sought or accepted ab sent an affirmative preliminary 
determination, it is unclear whether a Member should consider, or is even permitted to consider, a price 
undertaking if it has chosen not to issue a preliminary determination.