WORLD TRADE  
ORGANIZATION  TN/RL/GEN/137 
29 May 2006 
 
 (06-2553) 
Negotiating Group on Rules Original:   English 
  
 
PROPOSALS ON ISSUES RELATING TO THE 
ANTI-DUMPING AGREEMENT  
 
Paper from South Africa
 
 
 
 The following communication, dated 26 May 2006, is being circulated at the request of the Delegation of South Africa.  
_______________ 
 
  South Africa notes with interest the views expr essed in the numerous papers submitted to the 
Rules Negotiating Group.  In this paper South Africa focuses on issues that, in its opinion, may lead to a more balanced approach to anti-dumping proceedin gs, both substantively and procedurally.  There 
are costs and benefits to anti-dumping proceedi ngs, both in terms of international trade and 
investment and domestic economies.  South Africa is mindful that in focusing on the effects of 
injurious dumping on a particular domestic industry, investigating authorities should not loose sight of 
the potential cost to other industries and segments within the domestic economy.  In undertaken anti-
dumping proceedings, authorities should also ensure that all interested parties are able to participate in 
a meaningful way in such proceedings.  This can be accomplished by adopting proposals that enhance 
the transparency and predictab ility of anti-dumping proceedings. 
 
I. SUBSTANTIVE 
A. I
NITIATION ISSUES  
• Standing 
 
 Anti-dumping proceedings can have a significant impact on international trade flows.  These 
proceedings also impact the domestic economy in te rms of entities such as domestic producers of the 
like product, upstream and downstr eam industries and consumers.  The potentially far-reaching 
impact of anti-dumping proceedings counsels caution in  their initiation.  Currently, Article 5.1 of the 
AD Agreement requires authorities to determine whet her an application has been made “by or on 
behalf of the domestic industry”.  Article 5.4 provides that this standing requirement is met if at least 
25 per cent of the total production of the domestic  industry and 50 per cent of those domestic 
producers expressing an opinion support an applicati on.  But a question arises about the impact of 
allegedly injurious dumping on the domestic industry if less than an absolute majority of the domestic 
industry suffices to initiate anti-dumping proceedings.  The particular interest of a minority segment 
of the domestic industry should not lead author ities to embark on such proceedings given their 
domestic and international costs.  South Africa th erefore believes that the standing requirement of 
Article 5.4 should be increased.    South Africa is mindful, however, that for economies characterised by small and fragmented 
domestic industries, especially those of developi ng countries, a heightened standing requirement may TN/RL/GEN/137 
Page 2  
 
  disproportionately impact in a negative manner the domestic industry’s recourse to anti-dumping 
measures.  South Africa therefore proposes a heightened standing requirement in the form of a general rule.  The authorities may still deem an application to have been made “by or on behalf of the 
domestic industry” based on the current standard, provided they explain the reasons for such a 
determination.  
 
 Based on the same concerns leading to the fo rmulation of a general rule, South Africa also 
agrees with the proposal of Egypt (TN/RL/GEN/119,  page 2) that in determining whether the 
requirements for standing have been met, applicat ions lodged by or on behalf of associations of 
domestic producers should be assessed by taking in to account the production volumes of all of the 
members of the association as a whole. 
 Proposal (non text-based)
: 
  South Africa is of the opinion that norma lly the bar for standing should be raised and 
expressed as a single factor: whether more than 50 per cent of the total domestic production of the like 
product supports an application.   However, where the authorities determine that the standing 
requirement has been met because at least 25 per cen t of the total production of the domestic industry 
and 50 per cent of those domestic producers expressi ng an opinion support an application, the 
authorities must explain the reasons for basing standing on this lower requirement.  
B. D
UMPING MARGINS  
• Prohibition of “Zeroing”  
 
 Although the Appellate Body has not categorically prohibited zeroing in all instances in anti-dumping proceedings
1, its proper application has been narrowed to such an extent that transparency 
and fairness in anti-dumping proceedings dictate that no member should continue to employ it.  There 
is no legitimate reason why the methodology used to  calculate dumping margins should change based 
on the type of proceeding or the comparison met hodology (e.g. weighted average to transaction) 
employed.  In conducting anti-dumping proceedings, South Africa examines whether imports from an 
exporter or producer of the product under investig ation, taken as a whole, are being dumped.  
Consequently, South Africa does not use zeroing when calculating dumping margins in any anti-dumping proceedings.  
 
Proposal (non text-based)
:  
  South Africa is of the opinion that zeroing should not be allowed in original investigations or 
reviews, regardless of the calculation methodology used in these proceedings. 
 
C. I
NJURY ISSUES  
• Definition of Domestic Industry  
 
 In determining the existence of injury to  the domestic industry producing the like product, 
authorities must examine and form an opinion as to the representative nature of data collected on the 
domestic industry.  This is a central determin ation that should not be left to case-by-case 
determinations.  Yet, the term “a major proportion” in Article 4.1 of the AD Agreement affords 
authorities substantial discretion in determining what percentage of domestic producers should be 
encompassed by the “domestic industry”.  Spelling out what constitutes “a major proportion” of total 
                                                      
1 United States – Laws, Regulations, and Methodology for Calculating Dumping Margins , 
WT/DS294/AB/R, 18 April 2006  TN/RL/GEN/137 
 Page 3 
 
 
  domestic production would significantly enhance the tr ansparency and predictability of anti-dumping 
proceedings.  In line with our proposal on standi ng, the domestic industry should normally encompass 
more than 50 per cent of total do mestic production of the like product.   Where the authorities examine 
injury based on less than this percentage , they must provide an explanation. 
 
Proposal (text-based) : 
 4.1  For the purpose of this Agreement, the term  “domestic industry” sh all be interpreted as 
referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes more than 50 per cent of the total domestic production of 
those products, except that: 
  (iA) the term “domestic industry” may be in terpreted to refer to domestic producers whose 
collective output of the product constitutes a major proportion of the total domestic production of the like products, provided the authorities explain why examining domestic 
producers whose collective output constitutes less  than 50 per cent of the total domestic 
production of the like products is appropriate; 
 
• Definition of Dumped Imports  
 
 We agree with the proposal by Brazil (TN/ RL/GEN/65/Rev. 1) that  dumped imports do not 
include imports from exporters found not to have dumped or found to have dumped at de minimis  
levels. 
 
• Causation  
 
 Article 3.5 of the AD Agreement requires authorities to establish a causal relationship between dumped imports and injury to the domestic  industry.  Pursuant to the non-attribution 
requirement of Article 3.5, authorities may not a ttribute injury from known factors other than the 
dumped imports to injury from the dumped imports.  In effect, authorities must separately analyse the 
impact in terms of injury attributable to these two groups of factors. In carrying out this analysis, it may not be possible to quantify ex actly to what degree each factor  is contributing to the injury 
affecting the domestic industry under investigation.  Notwithstanding any inability at quantification of 
injury factors, the injury caused by dumped impor ts must be at least as significant as the other known 
factors, individually or collectively.  This is because  a finding of material injury is incompatible with 
a determination that other known factors are contri buting to a larger degree to the injury being 
suffered by the domestic industry.  Proposal (non text-based)
: 
 
 South Africa is of the opinion that in maki ng a determination on causation, the authorities 
need not isolate or quantify the effects of the dum ped imports or any known factors other than the 
dumped imports, either individually or collectivel y.  We are, however, of the opinion that an 
evaluation needs to take place indicating that the effects of the dumped imports are at least as 
important as the effects of the other known factors, either individually or collectively. 
 
• Material Retardation  
 
 South Africa agrees with the proposal by Egypt (TN/RL/GEN/122) that the term “material retardation of the establishment of such an indus try” should not be limited to newly established 
industries, but should also apply to all domestic i ndustries that are characterised by a limited level of 
commercial development and/or a reorganisation of an industry. TN/RL/GEN/137 
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D. I
MPOSITION OF MEASURES  
• Public Interest  
 
 Anti-dumping measures can affect not only inter ested parties, but also parties representing 
other segments of a domestic economy.  It is S outh Africa’s opinion that Members should consider 
procedures to allow the interests of various domestic pa rties, in addition to interested parties, to be 
considered in anti-dumping proceedings.  Although South Africa considers inclusion of the public 
interest in anti-dumping proceedings to be desirabl e, it recognises that such considerations are specific 
to each Member and can represent a significant commi tment of administrative resources, and it is 
therefore for Members to decide whether or not to include such procedures in their anti-dumping 
proceedings. 
 Proposal (non text-based)
:  
  South Africa is of the view that public inter est consideration in anti-dumping proceedings is 
predominantly a national issue that also has serious administrative resource implications, in particular 
for developing countries, and is better dealt with through national legislation. 
 E. T
ERMINATION  
• Negligibility  
 
 Article 5.8 of the AD Agreement directs th e authorities to terminate anti-dumping cases 
where, among other things, the volume of dumped imports is negligible.  Negligibility is therefore 
based on a determination of the volume, not of all imports, but of imports that are being dumped.  
Because the determination of negligibility typically occu rs prior to initiation, it also occurs prior to the 
determination of whether imports from a country (and the specific exporters or producers of that 
country) are being dumped. In this regard, South Africa again notes its agreement with the proposal 
by Brazil (TN/RL/GEN/65/Rev. 1) that dumped impor ts must not include imports from exporters or 
producers found not to have dumped or found to have dumped at de minimis  levels.  Consequently, 
once a determination regarding the existence of du mped imports has been made, the authorities must 
re-assess the volume of such imports in light of the negligibility requirement. 
 
Proposal (non text-based) :  
  South Africa is of the opinion that subsequent to the exclusion of non-dumped imports and imports dumped at de minimis  levels from the imports of a country, the authorities must re-examine 
whether the volume of dumped imports is negligible.  
F. R
EVIEWS  
• Sunset Reviews  
 
 Members have observed that “the presumption in current rules towards expiry after 5 years is 
being circumvented with unsubsta ntiated reviews being initiated t hus prolonging life of measures” 
(TN/RL/W/30, page 5 and TN/RL/GEN/61, page 1).  While the lack of more explicit guidance in 
Article 11.3 may be partially to blame, South A frica is doubtful that the necessary guidance can be 
provided to avoid measures remaining in force for ex tended periods of time.  As a consequence, South 
Africa is of the opinion that sunset reviews should be  limited to a single review, and that if authorities 
determine that expiry of a measure would be likel y to lead to continuation or recurrence of dumping  TN/RL/GEN/137 
 Page 5 
 
 
  and injury, the measure should remain in force for an  additional period not to exceed three years.  The 
interdiction of multiple reviews would not prev ent the authorities from initiating an original 
investigation based on updated informat ion on dumping, injury and causation. 
  South Africa also shares the view expressed in  the paper of Canada (TN/RL/GEN/61) that 
authorities should not be able to initiate a sunset review ex officio .  If domestic industries are not in a 
position to request a sunset review , the measures should expire.  This situation is different from 
initiations of new investigations, as the domestic i ndustry producing the like product would have been 
aware of the costs and benefits of the measure at issue for many years.   
Proposal (text-based)
:  
 11.3  Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping duty shall 
be terminated on a date not later than five year s from its imposition (or from the date of the most 
recent review under paragraph 2 if that review ha s covered both dumping and injury, or under this 
paragraph), unless the authorities determine, in a review initiated before that date upon a duly 
substantiated request made by or on behalf of the domestic industry w ithin a reasonable period of time 
prior to that date, that the expiry of the duty woul d be likely to lead to continuation or recurrence of 
dumping and injury. (footnote omitted)  The duty may remain in force pending the outcome of such a 
review.  If the authorities determine that the expiry of the duty would be likely to lead to continuation 
or recurrence of dumping and injury, such duty may remain in place for three years after the 
completion of the review, at which time the duty shall expire.  The authorities may not conduct 
multiple expiry reviews . 
 
II. PROCEDURAL 
 Procedures/Due Process/ Transparency/Evidence
 
 
• Access to Non-Confidential Information  
 
 South Africa agrees with the Members advoca ting that interested parties should be given 
greater access to non-confidential information.  We note, however, that not all Members have the 
same resources, and are therefore of the view that each authority must decide on the exact procedures 
to make such information available.  Accordingl y, South Africa proposes that Article 6 be amended 
by the insertion of a new Article, i.e. Article 6.15. 
 Proposal (text-based)
:  
 6.15  The authorities shall keep a public file c ontaining all non-confidential information submitted 
to or obtained by the authority.  The public file shall also contain an index of all the documents 
included in the public file and documents not included  in the public file b ecause of the confidential 
nature of the document.  The authorities shall decide  on a procedure to make the public file available 
to interested parties.  
• Questionnaires  
 
 Anti-dumping proceedings are specialised proceedings and can require the submission of significant quantities of highly detailed information.  As a result, interested parties are not always in a position to provide the requested information co mpletely and accurately.  The authorities should 
provide these parties with notice of any deficiency in  their submission.  Affording interested parties a 
reasonable opportunity to complete or rectify their submission through the provision of deficiency TN/RL/GEN/137 
Page 6  
 
  letters is not only a question of procedural fairness, but also of obtaining the most accurate 
information possible.  South Africa proposes that Article 6 of the AD Agreement be amended.  Proposal (text-based)
:  
 
6.1.1   Exporters of foreign producers receiving questionnaires used in an anti-dumping investigation 
shall be given at least 30 days for reply. (footnot e omitted) Due considerati on should be given to any 
request for an extension of the 30-day period, an d, upon cause shown, such an extension should be 
granted whenever practicable.  The authorities sha ll inform an interested party in writing if the 
information submitted by that party in reply to a ques tionnaire is incomplete or requires clarification.  
The interested party shall be afforded not less th an 7 days to provide additional information or 
clarification.  
• Disclosure  
 
 South Africa recognises the importance of the discl osure of essential facts to interested parties 
to allow such parties to defend their interests.  At the preliminary stage of anti-dumping proceedings, 
however, this interest must be weighed against the in terest of applicants to have preliminary measures 
put in place without undue delay and the interest of investigating authorities to meet tight deadlines.  
 Proposal (non text-based)
: 
 
 South Africa is of the opinion that preliminar y determinations should not be included in the 
scope of Article 6.9 of the AD Agreement.  
• Mandatory Preliminary Determinations  
 
 South Africa agrees with the proposal by Brazil (TN/RL/GEN/102) that authorities must 
make a preliminary determination in all new inv estigations whether or not provisional measures are 
imposed, and issue a report to provide interest ed parties with an opportunity to comment. 
 
• Public Notices  
 
 Public notices play a vital role in anti-dumping proceedings.  These notices, alone or in 
conjunction with separately issued reports, inform interested parties of the material findings and 
conclusion on issues of fact and laws considered by authorities.  In the interest of transparency and 
ensuring a common minimum level of disclosure of su ch information, South Africa, in line with its 
agreement with the proposal by Brazil on mandatory  preliminary determinations, proposes to amend 
Article 12.2.1 by inserting language on additional elements that must be incorporated into such 
notices or reports. 
 
Proposal (text-based)
:  
  In the public notice of a preliminary determina tion the authorities shall set forth, or otherwise 
within seven days of the public notice make ava ilable through a separate report, sufficiently detailed 
explanations for the preliminary determination on dum ping and injury.  Such a notice or report shall, 
due regard being paid to the requirement for the protection of confidential information, contain in 
particular:   (i) Name of the applicant;  TN/RL/GEN/137 
 Page 7 
 
 
   (ii) A full description of the product under investigation including the name of the 
exporting country or countries involved and the names of the known exporters and foreign producers of the product under investigation;  
 (iii) Date and number of the public notice to initiate;  (iv) Information concerning the domestic like product and the domestic industry; 
 (v) Information concerning verification of information used by the authorities; 
 (vi) Margins of dumping and methodology u sed to determine the margin of dumping; 
 (vii) Injury factors considered;  (viii) Causality factors considered;  and  (ix) Information on provisional measures, if any, being imposed. 
 
• Verifications  
 
 The AD Agreement recognises the importance of authorities satisfying themselves of the 
accuracy of the information upon which their fi ndings will be based.  The AD Agreement, in 
Article 6.7 and Annex I, therefore makes provisi on for the verification of information submitted by 
interested parties in anti-dumping proceedings.  Sout h Africa believes that further clarification of the 
obligations of authorities in the conduct of verificati ons is warranted given their central importance in 
the determining the accuracy of information used in  the calculation of normal values and export prices 
and the general nature of the aforementi oned provisions of the AD Agreement.  
  Specifically, South Africa is of the opinion that  parties should be given adequate opportunity 
to prepare for verification.  The authorities should th erefore issue pre-verification letters, indicating, at 
a minimum, the proposed dates of the verification, and the information that will be verified and the information they will require during verification.  Because of the importance of  the information being 
verified and because inadvertent e rrors can occur, all interested parties should be permitted to 
comment on the verification report.  To enable inter ested parties to do so, a non-confidential version 
of the verification report should be placed in the pu blic file.  In this regard, the authorities should 
provide verification reports in a timely manner prior to issuing the preliminary or final determination, 
depending on when authorities conduct verifications  in the relevant anti-dumping proceedings.  We 
propose the changes to Article 6.7 relating to the prov ision of a verification report to interested parties 
and comments thereon by interested parties.  
Proposal (text-based)
: 
 6.7  In order to verify information provided or to obtain further details, the authorities may carry 
out investigations in the territory of other Member s as required, provide they obtain the agreement of 
the firms concerned and notify the representatives of the government of the Member in question, and 
unless that Member objects to the investigation.  Th e procedures described in Annex I shall apply to 
investigations carried out in the territory of othe r Members. Subject to the requirement to protect 
confidential information, the authorities shall make th e results of any such investigations available to 
all interested parties before a preliminary or final determination is made.  Such disclosure shall take 
place in sufficient time for the pa rties to defend their interests. 
 
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