WORLD TRADE  
ORGANIZATION  TN/RL/GEN/143 
27 June 2006 
 (06-3119) 
Negotiating Group on Rules Original:   English 
  
 
SPECIAL AND DIFFERENTIAL TREATMENT AND 
TECHNICAL ASSISTANCE IN TRADE REMEDIES  
 
Submission by Kenya
 
 
 
 The following communication, dated 26 June 2006,  is being circulated at the request of the 
Delegation of Kenya.  
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1. Introduction 
 
 This proposal seeks for the extension of Speci al and Differential Treatment to Developing 
countries to facilitate the initiation of investig ations for the application of anti-dumping and 
countervailing measures.  It also seeks for the Adop tion of an Understanding or a Decision Identifying 
and Supporting Technical Assistance needs of Devel oping Countries for the Building up of Technical 
Capacities for the application of Trade Remedy laws.  
2. Background and objective 
 
 The Agreement on Anti-Dumping Practices (ADP) authorizes countries to apply anti-dumping measures to imports that are being dumpe d.  Likewise the Agreement on Subsidies and 
Countervailing Measures permits countries to levy c ountervailing duties on imports that benefit from 
subsidies granted by the governments of the expor ting countries.  The two Agreements however lay 
down an important rule that such anti-dumping and countervailing measures ca n only be applied, if 
after investigations undertaken on the basis of a wr itten complaint, it is established that dumped or 
subsidized imports are causing injury to the comp laining domestic industry and that there is a causal 
link between such imports and injury to the industry.   The experience of  Kenya and some of the ot her African countries in the region which have 
some inadequate legal framework and have been unable to establish institu tional framework for the 
investigations of complaints, shows that manufact uring industries and agricultural producers in their 
countries which are being injured by dumped or subsid ised imports are not able to take full advantage 
of the right which the two agreements confer on th em to petition for investigations for the following 
reasons. 
 
 First  the rules require that the a pplication for such investigations should be accompanied, in 
the case of application for the levy of anti-dum ping and countervailing duties detailed information on 
the prices charged by the exporters (export prices) in the importing market and the prices charged by them for sale in their home markets (home market prices).  While information on export prices is readily available in the importing countries, they fi nd it extremely difficult to collect information on 
prices charged by the exporters in their home markets. 
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   Second , both the Agreements require applicants to establish “standing” for making petition, 
by establishing inter alia  that the application has the support of producers, which account for at least 
25 per cent of the total production.  It is often di fficult for the affected producers to establish such 
standing, as in many industrial sectors, where production is undertaken on small-scale basis, the number of producers is large.  The producers are also not organized as associations.  Establishment of 
standing is particularly difficult, in the case of agricultural products, where production is undertaken 
by hundreds or thousands, if not millions of sma ll-scale farmers, who are poor and often illiterate. 
 
3. Proposal for the clarification of the rules and for adoption of an understanding on 
decision on technical assistance 
 
 Against this background, th e delegation of Kenya proposes that special and differential 
treatment should be extended to developing countries by:  
• Clarifying the relevant provisions in the Ag reement on ADP and SCM to recognize that the 
governments of developing countries may have to assist their affected industries and 
agricultural producers in bringing cases before the investigating authorities, where they 
consider that there are reasonable grounds to be lieve that increased dumped or subsidized 
imports are causing injury to the domestic industry, and  
• Adopting a Decision or an Understanding unde r the provisions of the two Agreements 
specifying the technical assistance needs of developing countries for the implementation of 
their rules. 
 
3.1 The existing rules in the Agreements rel ating to the initiation of investigations  
 
 The Agreements on ADP and SCM contains analogous provisions laying0 down rules on how 
“investigations” should be initiated.  These are contai ned in Art. 5 of the ADP Agreement and Art. 11 
of the Agreement on SCM. 
 
• Paragraph 1 of these two Articles states that “ an investigation to determine the existence, 
degree and effect of any alleged dumping or subsidy shall be initiated upon a written 
application by or on behalf of the domestic industry.”   This is followed in para 2  that 
enumerates the nature and type of evidence th at must be included in the application which 
include such elements as, dumping or subsidy, injury to the domestic industry and causal link 
between dumped imports and injury. 
• An exception to the above rule is provided by Pa ra 6 in the two Articl es.  It states that “ if, in 
special circumstances, the authorities concerned decide to initiate an investigation without 
having received a written application by or on be half of a domestic industry for the initiation 
of such investigation, they shall proceed onl y if they have sufficient evidence of dumping or 
subsidization, injury and a causal link, as descri bed in para 2, to justify the initiation of an 
investigation. ” 
 
3.1.1 Proposals for clarification of the above rules 
 
 It is proposed that the above provisions should be clarified to provide that:  
• The “specific circumstances” (referred to in para 6 of Art. 5 of ADP Agreement and of 
Art. 11 of the SCM Agreement) which make it difficult for the industry affected by dumped 
or subsidized imports, to apply for the anti- dumping or countervailing measures, exist in a 
large number of developing countries, includi ng those which are least developed and small 
economies.  
• Because of this, the governments of these c ountries have to play a more active role:   TN/RL/GEN/143 
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  • In assisting their manufacturing industries and agricultural producers in 
collecting evidence that is needed fo r inclusion in the application for 
imposition of anti-dumping and countervailing measures, and  
• By taking initiative for requesting the investigating authorities to initiate 
investigations where there are reasonable grounds to believe, on the basis of the information collected, that there is  sufficient evidence to suggest that 
increased imports are causing injury to the domestic industry and the industry 
has no technical capacity to apply for investigations.  
• For collection of such evidence the government s could exercise surveillance of trends in 
imports and the prices of products that are allege d to be injured by dumped and or subsidised 
by the manufacturing industry or agricultural prod ucers.  Such surveillance could be exercised 
by: 
• Requiring the customs administration to provide on transaction-by 
transaction basis, data on volume of im ports and their prices or product or 
products put under surveillance.  
• Adopting systems for licensing of imports of such products 
• Where a licensing system is adopted for the surv eillance of the imports, the importers shall be 
required to submit in their application for li cences, information on quantities to be imported, 
the import price and the price at which the product is being sold in the domestic market of the 
exporting country.   
• Such licences should be issued automatically a nd shall not be used for restrictive purposes.  
The provisions of the WTO Agreement on licensing  procedures, which require that automatic 
licences should be issued within a period of 10  days, shall apply to such licensing systems. 
• The governments of countries which use the ser vices of Preshipment Inspection Companies 
may use the services of these co mpanies to obtain information on prices, of the products put 
under surveillance in the domestic market of the exporting country. 
• The information collected under the surveillan ce mechanism shall be published and could be 
used as evidence in support of applications to  the investigating authorities for initiation of 
investigations: 
• By the affected domestic manufacturing industry or agricultural producers or 
• By governments, where application for in itiation of investigations is made by 
them. 
 
4. Adoption of an Understanding or a Decision on Technical Assistance. 
 
 Both Doha and Hong Kong Ministerial Decl aration emphasise the importance of adopting 
programmes for providing aid for trade which focu s on the needs of the beneficiary countries and 
reflect their priorities.  (See para 38 of the Do ha Ministerial Declaration and para 53 of the 
Hong Kong Ministerial Declaration). Taking into  account this mandate provided by the two 
Declarations, it is suggested that a Decision or Unde rstanding should be adopted, as an integral part of 
the ADP and SCM Agreements identifying the areas in  which assistance may have to be provided for 
enhancing the technical capacities of developing co untries for the implementation of the rules of the 
Agreements on ADP and SCM.  Some of the areas in which assistance may be needed are indicated 
below:  
• Establishment of legal and institutional framework  that is needed for the application of anti-
dumping and countervailing measures to countries wh ich have not been able to establish such 
framework and for training of personnel in undertaking investigations according to the 
procedures prescribed by the two Agreements 
• Establishment of mechanisms or the surveillance of imports of products th at are alleged to be 
causing injury to domestic manufacturing industries or agricultural producers with a view to assisting them in collecting evidence on trends in imports and their prices; TN/RL/GEN/143 
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  • Establishment of “regional investigating author ity” for investigations of complaints from 
manufacturing industry and agricultural producer s in countries belonging to a regional 
economic grouping; 
• Training of lawyers, accountant and other processi onals in the application of trade remedy 
laws (viz. Agreements on ADP, SCM and safeguards). 
 
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